Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.1095/SS/2018.
Filed on : 29/05/2018.
Decided on : 13/05/2019.
Duration : Y M D
– 11 14.
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by P.V. Bulbule)
C.C. No.1095/SS/2018
Exh.No.: 21.
Mr. Navin Sitaram Gamre
Residing at C/o. B200/05,
Government Colony,
Bandra (East), Mumbai – 400 051. ....Complainant.
V/s.
Mr. Donald Anthony D’souza
Having address at 05, Dadu 2
Apartment, Nana Nani Park,
Manvel Pada Road, Virar (East),
Taluka – Vasai, District – Palghar. ..... Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Milind B. Gaware : Ld. advocate for the complainant.
Mr. Vimlesh S. Kushwaha : Ld. advocate for the accused.
JUDGMENT
(Delivered on 13/05/2019)
The accused is facing trial for commission of an offence
punishable under section 138 of the Negotiable Instruments Act
(hereinafter referred to as 'The Act' for the sake of brevity.)
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2. Brief facts are as under:
The complainant and his wife are residing at Government
Colony, Bandra (East), Mumbai and both are working. The
complainant is intending to purchase a room. The complainant
approached to the accused through local friend. The accused has
shown three rooms in Sidharth Apartment, Ramchandra Nagar, Fulpada
Road, Virar (East), Taluka Vasai, District Palghar. The complainant has
choosed Room No.108 which is one room kitchen. The accused agreed
to sale room for Rs.7,50,000/. The complainant and his wife have only
Rs.2,50,000/. The accused insisted to execute an agreement for sale
and he would arrange the loan. Accordingly, on 03/09/2014 loan
agreement was executed and amount of Rs.2,50,000/ was paid by
cheque to the accused on 08/09/2014. At that time one Mrs. Chavan
was tenant in room. Therefore, the possession is not handed over to the
complainant. The accused failed to arrange the loan. The complainant
made an attempt to loan and came to know that the agreement is
incomplete document. The complainant approached the accused.
Thereafter, he came to know that said room/ flat belongs to aunty of
the accused Mrs. Santana Vaaz. She has lodged police report against the
accused. The complainant demanded his amount with the accused.
Therefore, the accused issued the subject cheque bearing No.012656
dated 22/02/2018 of Rs.2,50,000/ drawn on Axis Bank, Virar (East)
Branch. The accused had also given an affidavit. The accused requested
not to deposit the said cheque for 15 days.
3. On 16/03/2018 the complainant deposited the subject
cheque in joint account of The Saraswat Cooperative bank, Bandra
(East) Branch, Mumbai – 400 051. It is dishonoured on 19/03/218 with
reason ‘account closed’. The complainant issued the demand notice on
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13/04/2018. It is sent on last known address and it is served on
20/04/2018. The accused failed to comply the said notice. Therefore,
the complainant is constrained to file the present complaint.
4. After perusal of complaint, verification and documents
process is issued against the accused on 23/07/2018 under section 138
of the Negotiable Instruments Act. In response to service of the
summons, the accused appeared and his plea is recorded at Exh.11.
The particulars of the plea are read over and explained to him in
vernacular to which he pleaded not guilty and claimed to be tried.
5. The complainant led the evidence. The accused remained
continuous absent. Therefore, on 30/11/2018 the crossexamination is
closed.
6. Thereafter, the matter is posted for recording the statement
of the accused under section 313 of The Criminal Procedure Code. The
trial is summary in nature. The accused is also remained absent.
Hence, the statement of the accused is dispensedwith on 03/01/2019.
Thereafter, on 31/01/2019 the accused remained absent therefore,
defence evidence is also closed. The complainant filed memorandum of
argument at Exh.12.
7. In view of all above facts, following points arise for my de
termination to which I have recorded my findings before them for the
reasons discussed there below.
POINTS FINDINGS
1. Is it proved that the accused, in order to
discharge the legally enforceable debt or liability,
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had issued a cheque bearing No.012656 dated
22/02/2018 of Rs.2,50,000/ drawn on Axis
Bank, Virar (East) Branch, Thane – 401 305 in
favour of the complainant?
Proved.
2. Is it proved that cheque in question was
dishonored for the reason 'account closed' and
despite service of demand notice under section
138(b) of the Negotiable Instruments Act, the
accused failed to pay the cheque amount and
thereby committed an offence punishable under
section 138 of the Negotiable Instruments Act?
Proved.
3. What order? As per final order.
REASONS
8. To prove the case, the complainant Mr. Navin Sitaram
Gamre examined himself as P.W.No.1 at Exh.6. The complainant relied
on agreement for sale at Exh.12, affidavit at Exh.13, letter dated
22/02/2018 at Exh.14, subject cheque at Exh.15, bank memo at
Exh.16, office copy of demand notice dated 13/04/2018 at Exh.17,
postal receipt at Exh.18 and postal acknowledgment card at Exh.19.
As to Point Nos.1 & 2 :
9. It is the case of the complainant that he has made the
agreement to purchase flat / room. The accused failed to arrange and
make out title. Therefore, the accused refunded the amount by cheque
and it is dishonored. In this matter, the complainant is required to prove
essential ingredients under section 138 of the Negotiable Instruments
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Act. Once ingredients are proved, initial presumption under section 139
of the Negotiable Instruments Act is established. Onus shifted on the
accused to rebut it. In the case of 'Rangappa V/s. Mohan 2010 Law
Suit (S.C.) 277', the Hon'ble Apex Court has held that there is initial
presumption which favours the complainant that the cheque was issued
to discharge of debt or other liability. It is further held that once the
cheque in question is issued and signature thereon is admitted to be of
the accused, it has to be presumed that the cheque is issued to
discharge of debt or other liability. Presumption is rebuttable by the
accused by leading probable evidence.
10. I have perused the evidence of Mr. Navin Sitaram Gamre
P.W.No.1. His evidence is synonymous with the contents of the
complaint. He deposes that he and his wife are working. He is also
freelance Singer. He is intended to purchase room / flat. The accused
has shown one room kitchen Room No.108, in Virar (East) area for
Rs.7,50,000/. Accordingly, the agreement for sale executed. The
complainant paid Rs.2,50,000/ by the cheque. The agreement for sale
is produced at Exh.12. It is notarized agreement. One receipt of
Rs.2,50,000/, is also attached. This document clearly shows that the
complainant paid amount. It is collateral to the cheque. It is presumed
that the cheque is issued for the consideration amount.
11. The evidence of Mr. Navin Sitaram Gamre P.W.No.1 further
shows that the accused failed to arrange loan. The complainant
attempted to loan and came to know that the agreement for sale is
incomplete document. He approached the accused and came to know
that Aunt of the accused Mrs. Santana Vaaz is owner of said room/ flat.
She has also lodged the report against the accused. Thereafter, the
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accused agreed to refund the amount. He executed an affidavit. It is
produced at Exh.13. He has also given letter at Exh.14 and subject
cheque at Exh.15. The cheque is dated 22/02/2018. The complainant
presented the cheque in his bank and it is dishonoured on 19/03/2018
for the reason ‘account closed’. Bank memo is at Exh.16. It bears
signature of bank authority. The complainant issued the demand notice
dated 13/04/218. The office copy of the demand notice is at Exh.17.
The postal receipt is at Exh.18 and postal acknowledgment card is at
Exh.19. It shows that notice is duly served to the accused. The accused
remained continuous absent and has not crossexamined. Likewise, the
accused has not given any reply to the demand notice. The oral and
documentary evidence are corroborative to each other. The evidence
on record is sufficient to establish ingredients for the offence punishable
under section 138 of the Negotiable Instruments Act. The presumption
is established. The accused failed to give rebuttal evidence.
12. In view of judgment in Indian Bank Association Vs. Union
of India, (2014)5 SCC 590, it is held that the accused should file an
application under section 145(2) of the N.I. Act for recalling a witness
of complainant. In this case before me the accused failed to recall the
complainant for cross examination. The present case is for the offence
under section 138 of the N.I. Act and tried as summarily. In Rajesh
Agarwal Vs. State and another (decided by Hon’ble Delhi H.C. on 287
2010) it is held that if there is an application under section 145(2) of
N.I. Act for recalling a witness of complainant, the court shall decide the
same, otherwise, it shall proceed to take defence evidence on record
and allow cross examination of defence witnesses by complainant.
Thereafter, to hear arguments of both sides and to pass
order/judgment. Hence, there is no need to take statement of accused
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under section 313 of the Code of Criminal Procedure. Hence, the
accused committed the offence punishable under section 138 of the
Negotiable Instruments Act. Therefore, I answer to point Nos.1 and 2 in
the affirmative.
13. The case is tried as summarily. Hence, there is no need to
hear the accused on the quantum of sentence. The accused and his ld.
Counsel remained continuous absent and caused delay. The case is 01
year old. In view of my above findings the amount of Rs.2,50,000/ is
paid by the complainant. He has documentary evidence. The accused
failed to reply to the demand notice. Likewise, failed to participate in
the matter. The accused has not given any rebuttal evidence of
presumption under section 139 of the Negotiable Instruments Act. The
accused is liable. Considering nature of the matter, it is just to impose
the sentence of till rising of the Court and refund the cheque amount
along with interest to the complainant. Therefore, the complainant is
entitled for compensation under section 357 (3) of the Criminal
Procedure Code. In the case of Harisingh Vs. Sukhbirsingh 1988 (4)
SCC 551, Hon’ble Apex Court has held that the court may impose the
order of compensation by imposing sentence in default. Likewise, in the
case of R. Vijayan Vs. Baby & Anr. 2012 ALL MR (Cri.) 1325 (S.C.), the
Hon'ble Apex Court has held that the court can grant an interest on the
cheque amount.
14. Considering facts and circumstances of the case, the
complainant is entitled for the compensation. Hence, in view of above,
simple interest @6% per annum on the cheque amount from the date of
cheque till today along with subject cheque amount is justified.
Accordingly, I proceed to pass following order
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ORDER
1. Accused Donald Anthony D’souza having address at 05, Dadu 2
Apartment, Nana Nani Park, Manvel Pada Road, Virar (East), Taluka –
Vasai, District – Palghar, is hereby held guilty under section 255(2) of
Criminal Procedure Code and is convicted for the offence punishable
under section 138 of the Negotiable Instruments Act, 1881 and the
accused is hereby sentenced to till raising of the court.
2. The accused is further sentenced under section 357 (3) of the
Criminal Procedure Code and directed to pay compensation sum of
Rs.2,50,000/ (Rs. Two Lakh Fifty Thousand Only) i.e. subject cheque
amount along with simple interest @6% per annum on subject cheque
amount from the date of cheque i.e. 22/02/2018 till today to the
complainant within period of Three (03) months from today. In default,
the accused to suffer simple imprisonment for period of One (01)
month.
3. The accused to surrender his bail bonds.
4. As the accused is absent hence issue nonbailable warrant against
the accused to bring her before the court and hand over her the copy of
the judgment.
5. Copy of judgment shall be given to the accused free of cost.
6. Judgment dictated and pronounced in the open court in presence of
the 13.05.2019.
Sd/
(P. V. Bulbule)
Mumbai Metropolitan Magistrate,
Date : 13/05/2019. 58th Court, Bandra, Mumbai.
SBS
Dictated on : 13/05/2019.
Transcribed on : 13/05/2019.
Checked on : 13/05/2019.
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