Final Order 3

Order Details: Order Below EX 1
Pdf Text: Summons Cases SS/5801204/2019
Judgment Exh.31
MHMM180082882019
Filed on :21.11.2019
Registered on :21.11.2019
Decided on :07.03.2025
Duration :05-Y 03-M 15-D
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/5801204/2019
(CNR NO.MHMM180082882019)
Exh.31
Wakil Ahmed S/o. Khalil Ahmed
Age : Adult, R/o. at 12, Shaffi Building,
Ground Floor, Near Jama Masjid Main Road,
Dharavi, Mumbai – 400 017.
…. Complainant.
Versus
Khaja Mohammed Jainuddin Shaikh
Age : 45 years, R/o. Room No.19, D- Sector,
Z-Line Mirza Galib Road, Chita Camp,
Trombay, Near Star Hotel, Mumbai TF
Doconar, Mumbai – 400 088.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Sanjay Kumar Tiwari Advocate for the complainant.
Mr. Ramzan Malik Advocate for the accused.
JUDGMENT
(Delivered on 07.03.2025)
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 friendly loan given to the accused
by the complainant.
2. The case of the complainant in nut shell is that –
That complainant is trader of leather chemicals. Accused
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was visiting him for selling school bags. Both were having friendly
relations. Out of said relations complainant gave Rs.50,000/- to the
accused as a friendly loan for short term by cheque. In discharge of
repayment of said loan accused issued subject cheque for Rs.50,000/-
dated 01.10.2019. On depositing cheque, the same returned unpaid for
the reasons ‘Funds Insufficient’ vide cheque return memo of
Corporation Bank, Dharavi branch of the complainant. The accused was
called upon to make payment of the dishonoured cheque by issuing
demand notice through advocate. The accused received said notice.
However, neglected to make payment. 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 the accused, particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.12 and claimed to be tried. The case was tried as
summons trial.
4. The accused was given more than sufficient opportunity to
exercise his right of cross examination as well as giving explanation to
the incriminating substance found in the evidence of the complainant
against him but he failed to exercise said both rights by remaining
absent. Thereafter, statement of accused under section 313 of Code of
Criminal Procedure could not be recorded as accused remained absent.
The same was dispensed with vide order dated 20.07.2024 below
Exh.23. The bail bonds of the accused was forfeited vide order below
Exh.01 dated 31.08.2024. The matter was posted for Judgment.
However, considering absence of accused his application Exh.28 for
setting aside ‘No Cross’ order came to be rejected vide order dated
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15.02.2025. Meanwhile accused was given more than sufficient
opportunity to show his bonafides.
5. Heard, Advocate Sanjay Kumar Tiwari for the complainant.
Perused written notice of arguments filed by the complainant at Exh.24
on 19.10.2024. The accused and his advocate failed to advance
arguments despite giving sufficient opportunity.
6. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
drawn subject cheque bearing No.070987
dated 01.10.2019 for Rs.50,000/- of Dena
Bank, Nagdevi Branch, Mumbai-03 in favour
of the complainant in discharge of the legal
debt or liability to repay the loan amount ?
: Yes.
2. Whether it is proved that the cheque in
question was dishonored for the reason
‘Funds Insufficient’ and returned unpaid to
the complainant?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 10.10.2019,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant
making demand of payment of said cheques
amount in writing within one month of
receipt of information from the bank
regarding dishonour of cheque?
: Yes.
4. 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.
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5. What order? : Accused held
guilty and
convicted.
REASONS
7. To substantiate the contention raised in the complaint,
complainant has examined himself as CW-01 at Exh.13. Besides oral
evidence complainant has relied upon dishonoured cheque bearing at
Exh.15, cheque return memo at Exh.16, office copy of demand notice
dated 10.10.2019 at Exh.17, Postal receipt at Exh.18, Postal Track
consignment Report at Exh.19 and closed evidence. Accused has not
adduced oral or documentary evidence.
AS TO POINT NO.1:-
8. To substantiate contention of giving Rs.50,000/- towards
friendly loan, complainant has examined himself and relied upon the
disputed cheque Exh.15. Complainant’s oral and documentary evidence
has gone unchallenged by the accused. Full opportunity was given to
put up defence with a view of giving chance to a fair trial. However, by
conduct accused has compelled to draw an inference that he has no
defence at all. The oral evidence of the complainant is replica of
complaint and indicates lending money without interest to the accused
out of friendship. In absence of any defence of the accused there is
reason to believe complainant’s case of paying Rs.50,000/-.
9. Section 139 of Negotiable Instrument Act, 1988 draws a
legal presumption in favour of the holder of the cheque, which states,
“
It shall be presumed, unless the contrary is proved, that the holder of
a cheque received the cheque, of the nature referred to in section 138,
for the discharge, in whole or in part, of any debt or other liability.”
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10. In view of ratio laid down in the case of 'Bir Singh
V/s.Mukesh Kumar' (2019) 4 SCC 197, Hon'ble Supreme Court held
that,
“the presumption u/sec.139 of the Negotiable Instruments Act is
in favour of the complainant. It is the statutory presumption. The
burden of rebuttal is on the accused. If the ingredients are proved, the
Court is bound to draw the presumption in favour of the complainant”.
The complainant has proved existence of legal liability against the
accused on the date of cheque. The accused has not rebutted the
presumption under section 139 of the Act.
11. The complainant is holder of subject cheque. The cheque
belong to the Bank account of accused. It bears his signature which is
similar and identical to his signature recorded on plea Exh.12. Oral
evidence of complainant as to issuing cheque by the accused in
discharge of legal liability to repay the amount of friendly loan is duly
proved considering the signature of accused on the undisputed cheque.
The accused has not disputed the case of complainant by taking any
stand in defence at the time of recording plea or after commencement
of trial. Therefore, the presumption under section 139 will follow and
complainant would be benefited by the presumption of law in absence
of any evidence in rebuttal. Therefore, in view of presumption under
section 139, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
12. The complainant has produced the cheque return memo at
Exh.16. The cheque return memo of shows reason for dishonour of the
cheque, ‘Funds Insufficient’ in the account of accused. Accused has not
disputed reason for dishonour of cheque. Therefore, I answer the point
No.2 in the affirmative.
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AS TO POINT NO.3 :
13. Complainant has produced office copy of the demand
notice dated 10.10.2019 at Exh.17 alongwith postal receipt at Exh.18,
Postal Track Consignment Report at Exh.19. The Postal Track
Consignment Report Exh.19 shows that the envelop containing notice
under Article No.EM924260089IN was sent at the address of the
accused on 10.10.2019 and the same was delivered on 11.10.2019 to
the accused.
14. In absence of any defence and evidence of the accused,
there is reason to believe oral evidence of the complainant that he had
posted the notice Exh.17 by registered post to the accused. The accused
has not disputed the correctness of the address mentioned in the
notice. In view of presumption under section 27 of General Clauses Act,
there is reason to believe the valid service of demand notice upon the
accused. The notice shows legal and valid demand of the amount of
dishonoured cheque from the accused. Hence, I answer point No.3 in
the affirmative.
AS TO POINT NOS.4 AND 5 :
15. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
existence of legal liability or debt, issuing of cheque in discharge of
such legal debt or legally enforceable liability, dishonour of the cheque,
issuing statutory notice, non compliance of statutory notice within
stipulated period of 15 days, arising cause of action to file complaint
within 30 days etc.
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16. Complainant has proved that subject cheque worth
Rs.50,000/- was issued by the accused against and in discharge of legal
liability of repayment of amount of friendly loan given by the
complainant. The accused would not have issued subject cheque if he
was not liable to make payment of said outstanding amount. He could
have replied the demand notice if the transaction alleged by the
complainant was disputed one. Therefore, the complainant has proved
the existence of legal liability on the date of cheque. The demand by
statutory notice was made in compliance to section 138(b) of the Act.
The complaint is also filed within statutory period of 30 days after
arising of cause of action. Therefore, it is crystal clear that accused has
committed an offence punishable under section 138 of Negotiable
Instrument Act. 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.4 in the affirmative.
17. The act of the accused is an offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused is
liable for punishment. The accused is held guilty of the offence
punishable under section 138 of The Negotiable Instrument Act.
18. The record shows that accused is released on executing
Personal Bond and Cash Bail of Rs.7,000/-. The amount of cash bail
was forfeited and ordered to be credited to Government Account vide
order dated 31.08.2024. The order is also uploaded on CIS for the
knowledge of accused and his advocate. Despite the same neither
accused turned up before the court nor his advocate. The complainant
has right of speedy trial as of accused. The law mandates to conclude
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the trial within six months from the commencement of hearing under
section 143(3) of the Negotiable Instrument Act, 1881. Considering the
matter of year 2019 pending on the file of this Court coupled with
forfeiture of bond, the Judgment is delivered in absence of accused
taking recourse to section 353(6) of Code of Criminal Procedure.
19. 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 liable to make payment of the cheque
amount as claimed against the friendly loan given by the complainant.
The accused has kept the trial lingering by remaining absent. 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. The transaction in
between complainant and accused is out of friendship. It is not the
commercial transaction. Therefore, it would not be just and proper to
award fine double of the amount of the cheque. So far as punishment
as to substantive sentence to the accused is concerned, no purpose
would served by awarding maximum punishment with a view to
recover said amount from the accused. Besides substantive punishment,
the complainant is entitled to receive compensation for the delayed
payment of dishonoured cheque as per rate of bank interest. Hence, I
pass following order.
ORDER
1. Accused Khaja Mohammed Jainuddin Shaikh, Age : 45 years,
R/o. Room No.19, D- Sector, Z-Line Mirza Galib Road, Chita
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Camp, Trombay, Near Star Hotel, Mumbai TF Doconar, Mumbai
– 400 088, is hereby convicted vide section 255(2) r/w. 353(6)
of The Criminal Procedure Code, for the offence punishable
under section 138 of the Negotiable Instrument Act, 1881 and
he is sentenced to undergo simple imprisonment for 01 (One)
month and to pay fine of Rs.50,000/- (Rupees Fifty Thousand
only) with interest @ 7% per annum from the date of first
cheque that is 01.10.2019 till realization, in default of payment
of fine alongwith accrued interest to suffer further simple
imprisonment for 15 (fifteen) days.
2. If fine alongwith accrued interest is paid, the complainant be
given the same as compensation u/sec.357(1)(b) of Code of
Criminal Procedure.
3. The bail bonds of accused being forfeited stands cancelled.
4. Issue warrant for arrest u/sec.418(2) of Code of Criminal
Procedure against the accused for the purpose of forwarding
him to the jail.
5. The copy of Judgment be supplied to the accused free of cost as
and when arrested and brought before this Court.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 07.03.2025 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 : 07.03.2025.
Transcribed and Typed on : 07.03.2025.
Judgment printed and Signed on : 07.03.2025.
Judgment Uploaded on : 07.03.2025.
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