Final Order 3

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/5801111/2019
Judgment Exh.32
MHMM180080372019
Filed on : 09.10.2019.
Decided on : 12.11.2024.
Duration : 05-Y 01-M 04-D.
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/5801111/2019
(CNR NO.MHMM180080372019)
Exh.32
Dinesh Dhansingh Dulgach
Age : 37 years, R/o. At R.No.290,
Chawl No.19, Bharat Nagar, Bandra(E),
Mumbai- 400 051.
…. Complainant.
Versus
Smt. Babita Rakesh Sodha
Age : 38 years, R/o. R.No.276,
Chawl No.18, Bharat Nagar Road, Walmiki
Nagar, Bandra(E), Mumbai- 400 051. …. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Y. P. Dubey Advocate for the complainant.
Mr. Vikram Singh Advocate for the accused.
JUDGMENT
(Delivered on 12.11.2024)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of cheque alleged
to be issued against the repayment of financial assistance made to the
accused by the complainant.
2. The case of the complainant in nut shell is that –
That accused is residing in the same vicinity of the
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complainant. She was in need of Rs.4 lakhs for business purpose. In the
month of August 2018 she approached to the complainant to advance
said amount. Therefore, complainant gave Rs.4 lakhs by cheque dated
30.08.2018 to the accused. The accused issued receipt acknowledging
receiving of Rs.4 lakhs. Accused gave subject cheque for repayment of
said amount. On depositing said cheque for realization in Canara Bank
Bandra (E) branch, Mumbai, the same returned unpaid on 05.09.2019
vide cheque return memo with reason, ‘Funds Insufficient’. The accused
was issued statutory notice by Registered Post on 11.09.2019. Despite
receiving notice, accused neglected to make payment and gave false
notice reply on 25.09.2019. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against the accused under section 138 of Negotiable
Instruments Act. On appearance of accused, the particulars of offence
were stated to her in vernacular to which the accused pleaded not
guilty vide Plea Exh.8 and claimed to be tried. The case was tried as
summons trial.
4. The statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.25. Accused has taken
defence of no legal liability, giving cheque by her husband etc.
5. Heard advocate Mr. Y. P. Dubey for the complainant and
advocate Mr. Vikram Singh for the accused.
6. On hearing both sides following points arise for my
determination to which I have recorded my findings with reasons
thereto as follows-
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Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
issued subject cheque bearing No.205201 of
Rs.4,00,000/- dated 03.09.2019 drawn on
S.V.C. Co-operative Bank Ltd. Bandra(E)
branch, Mumbai in favour of the
complainant in discharge of the legal debt or
enforceable liability?
: Yes.
2. Whether it is proved that cheque in question
was dishonored for the reason ‘Funds
Insufficient’?
: Yes.
3. Whether it is proved that despite service of
demand notice, the accused failed to pay the
cheque amount within statutory period of 15
days after receiving notice and thereby
committed an offence punishable under
section 138 of the Negotiable Instruments
Act?
: Yes.
4. What order? : Accused is held
guilty and
convicted.
REASONS
7. In support of averments made in the complaint,
complainant has examined himself at Exh.11. Besides oral evidence
complainant has relied upon the Receipt cum Writing dated 30.08.2018
Exh.13, certified copy of Bank Account Statement at Exh.14, cheque
bearing No.205201 of Rs.4,00,000/- dated 03.09.2019 at Exh.15,
cheque return memo dated 05.09.2019 at Exh.16, office copy of
demand notice dated 11.09.2019 at Exh.17, Registered Post Postal
Receipt at Exh.18, Acknowledgment Card at Exh.19, notice reply dated
25.09.2019 at Exh.20 etc. and closed evidence. Accused has not
adduced evidence.
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AS TO POINT NO.1:-
8. It is the case of the complainant that he advanced Rs.4
lakhs towards financial assistance for business purpose to the accused
vide cheque payment. To support his case, complainant has adduced his
oral evidence as well as produced the documentary evidence of his
bank account statement. His oral evidence on the point of giving Rs.4
lakhs to the accused had remained intact in his cross examination. The
same is corroborated by the certified copy of his bank account
statement produced at Exh.14. The entry dated 01.09.2018 shows that
the cheque No.043778 for Rs.4 lakhs is cleared in the account of Babita
Rakesh that is accused. Man may speak lie but the documents never.
9. Complainant has further came with a case of executing
Receipt cum Writing Exh.13 on the date of issuing the cheque of Rs.4
lakhs to the accused. Complainant has produced said original document
at Exh.13 which shows signature, thumb impression and photo of the
accused as executant of said document in token of receiving Rs.4 lakhs.
Further, the accused herself has not disputed said document or its
authenticity in the cross examination of the complainant made on
behalf of her. On the contrary said document is duly proved in the
evidence of complainant. Accused has also admitted execution of
receipt in her notice reply Exh.20. Therefore, accused can not dispute
or deny execution of said document in acknowledgment of receiving
Rs.4 lakhs from the complainant.
10. It is vehemently argued on behalf of accused that on the
date of execution of said document Exh.13 the legal debt or liability
was not in existence as the money is not received on 30.08.2019. The
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cheque was issued in advance as a security. However, I do not found
any legal substance in his argument considering realization of the
cheque of loan amount in the account of accused on very next day that
is on 01.09.2018. The case would have been different if the cheque
issued in favour of the accused would not have realized on next date.
In that case, it would be acceptable that the legal debt was not in
existence. Further, the document of receipt cum writing itself shows
giving authority to the complainant to deposit the cheque in case of
failure to return the amount within stipulated period of 12 months.
11. While hearing the arguments of accused, it apprises that
accused has taken another defence of ill-legal money lending
transaction by the complainant. However, except bare suggestions,
there is no evidence to held that the transaction was of money lending.
The document Exh.13 nowhere shows clause of payment of interest nor
accused has adduced any such evidence to believe that she had paid
interest and the same was money lending transaction.
12. In the case of
Shripati Singh (Since deceased) through his
son Gaurav Singh Vs. The State of Zarkhand and another, reported in
2021, SCC online SC page No.1002, Hon'ble Supreme Court has held
that, “
A cheque issued as security pursuant to a financial transaction
can not be considered as a worthless piece of paper under every
circumstances. Security in its true sense is the state of being safe and
the security given for loan is something given as a pledge of payment.
It is given, deposited or pledged to make certain the fulfillment of an
obligation to which the parties to the transaction are bound. If in a
transaction, a loan is advanced and the borrower agrees to repay the
amount in a specified time frame and issues a cheque as security to
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secure repayment; if the loan amount is not prepaid in any other form
before the due date or if there is no other understanding or agreement
between the parties to defer the payment of amount, the cheque which
is issued as security would matured for presentation and the drawee of
the cheque would be entitled to present the same. On such
presentation, if the same is dishonored, the consequences
contemplated under section 138 and the other provisions of N.I. Act
would flow.”
13. Therefore, in view of law laid down by the Apex Court, a
cheque holds a legal and substantial value. It is not a mere piece of
paper. There is reason to believe the transaction in between
complainant and accused. Any transaction made by way of negotiable
Instrument is legal and valid unless contrary is proved. Except notice
reply, the accused has not adduced any other evidence either by way of
admissions in cross examination or independent witness to rebut the
presumption of law under section 139 and 118(a) of the Act.
14. Complainant is holder in due course of the subject cheque.
The legal value of the cheque will not be diminished even if it is
received in advance on the date of execution of receipt or even it might
be blank only with signature of the accused. Accused has not denied
her signature over the cheque and issuance of the same. Her stand in
statement recorded under section 313 of Code of Criminal Procedure
that her husband might have given the cheque to the complainant
appears absolutely false and ill-logical considering her signature on the
cheque. So also the defence is self contrary.
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15. Advocate for accused submitted that the blank cheque is
misused by the complainant. Section 20 of the Negotiable Instrument
Act permits the holder of the instrument to complete the incomplete
negotiable instrument. Thereby, it gives prima facie authority to the
holder thereof to make or complete the negotiable instrument. The
person so signing shall be liable upon such instrument. There is no
other evidence of material alternation in the instrument. Therefore, the
submission is not acceptable at all.
16. Even if it is assumed that the cheque was blank with only
signature of accused, in view of ratio laid down in the case of
Bir Singh
Vs. Mukesh Kumar by Hon’ble Supreme Court, the same is immaterial
that the cheque may have been filled in by the complainant. Herein the
case in hand, the cheque was itself given with understanding and
blanket right in favour of complainant to deposit the same for
realization in case of failure to return Rs.4 lakhs within 12 months.
Once issuance of cheque and signature of the accused is proved, the
onus of burden of proof shifts upon the accused to rebut the
presumption under section 139 and 118(a) of the Act. Accused has not
given evidence in rebuttal. Therefore, there is reason to believe that
subject cheque was issued by the accused in discharge of legal liability
to return the friendly loan amount. Hence, I answer the point No.1 in
the affirmative.
AS TO POINT NO.2 :
17. The complainant has produced the cheque return memo at
Exh.16. The cheque return memo Exh.16 dated 05.09.2019 shows that
the cheque Exh.15 returned unpaid for the reason ‘Funds Insufficient’
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in the account of accused. The cheque return memo bears signature of
Branch Manager and Seal of the Bank. The accused has not came with
a defence of having sufficient balance on the date of cheque in her
account. Further, the reason of dishonour of cheque is not disputed.
Therefore, in view of presumption under section 146 of the Negotiable
Instrument Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 AND 4 :
18. Complainant has proved issuing cheque Exh.15 by the
accused. Complainant has also proved that said cheque was
dishonoured and returned unpaid when presented for realization.
Further complainant has proved existence of legal debt and enforceable
liability on the date of said cheque by adducing cogent documentary
evidence of Receipt Cum Writing Exh.13 along with oral evidence. The
cause of action accrued to present the complaint is also duly proved.
The accused has refused to comply the statutory demand notice under
section 138(b) issued by the complainant vide her notice reply Exh.20.
The same has given cause of action to present the complaint by the
complainant within 30 days.
19. Now coming to the act of the accused in respect of
dishonour of the cheque and refusal to comply the statutory notice. As
accused has denied to make the payment for dishonour cheque, after
receiving statutory notice, the act of accused issuing cheque in
discharge of any debt or liability either in whole or in part without
maintaining sufficient balance to honour the cheque, amounts to an
offence punishable under section 138 of the Negotiable Instrument Act.
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20. The complainant has proved all the five essential
ingredients to attract criminal liability under section 138 of Negotiable
Instrument Act against the accused beyond all reasonable doubts.
Hence, I answer point No.3 in the affirmative.
21. The accused is held guilty of the offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused is
liable for punishment. The offence under section 138 of the Negotiable
Instrument Act being related to the monetary transaction based on
negotiable instrument, the accused needs to be heard on the point of
quantum of sentence.
22. Heard accused on the point of sentence. She submitted to
show leniency. Heard complainant who submitted that accused has not
returned his money since year 2018. He prayed for awarding
maximum punishment. Heard advocate for accused who also prayed to
show leniency to the accused.
23. While passing sentence, the court has to see the object of
the Act, effect of the punishment on the entire society. The main object
of the act is to raise faith in the transactions done by way of negotiable
instruments. The accused is lying before the court that she had not
received Rs.4 lakhs. Her statement is contrary to the documentary
evidence of the Bank Account Statement produced by the complainant.
The same shows that she had received Rs.4 lakhs from the
complainant. Therefore, there is reason to believe that the accused has
no repentance of her act. She seems to have used the negotiable
instrument as a tool for defrauding the complainant. Therefore, no
leniency can be shown in awarding punishment only on the ground
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that accused is lady and a housemaid. In the facts and circumstances,
showing leniency will pass a wrong message in the society. It will
encourage the defrauders to use the negotiable instruments as a
protracting tool. Nobody would trust making transaction on the basis of
negotiable instruments. Therefore, it would not be just and proper to
show leniency in awarding punishment to the accused. Hence, I pass
following order.
ORDER
1. Accused Smt. Babita Rakesh Sodha, Age : 38 years, R/o.
Bandra(E), Mumbai-51, is hereby convicted vide section 255(2) of
The Criminal Procedure Code, for the offence punishable under
section 138 of the Negotiable Instrument Act, 1881 and she is
sentenced to undergo Simple Imprisonment for 02 (Two) years
and to pay fine of Rs.8,00,000/- (Rupees Eight Lakhs only) in
default of payment of fine shall suffer Simple Imprisonment for
03(Three) months.
2. If fine paid by the accused, the same shall be given to the
complainant as compensation under section 357(1)(b) of Code of
Criminal Procedure. Interim compensation of Rs.60,000/- paid by
accused be adjusted towards amount of final compensation.
3. The bail bonds of accused being forfeited stands cancelled.
4. The copy of Judgment be supplied to the accused free of cost.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 12.11.2024 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Judgment are same, word to word as per
the original Judgment.
Name of Stenographer : Mrs.Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 12.11.2024.
Transcribed and Typed on : 12.11.2024.
Judgment printed and Signed on : 12.11.2024.
Judgment Uploaded on : 12.11.2024.
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