Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180118982022
Summary Cases/5800777/2022
LAXMI DIAMOND PVT. LTD. Vs. MR.
DINESHCHANDRA CHANDULAL SHAH
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.20
1. This is the application for an interim compensation filed
u/sec.143-A of the Negotiable Instrument Act.
2. It is contended on behalf of the complainant that accused has
purchased diamonds from the complainant. The subject cheque is issued
for the repayment of outstanding amount that is sell price of the
diamonds. The cheque issued by the accused was dishonoured and as such
the complaint came to be lodged. Accused has pleaded not guilty. Hence
this application.
3. Accused objected the application vide detailed reply Exh.39
on the main ground that he has already paid Rs.15 lakhs which was
inadvertently deposited into the complainant’s another account known by
Laxmi Diamond LLP, sister concern. Thereby accused has taken defence
that subject cheque is not issued towards or in discharge of any legal
liability as averred by the complainant. Accordingly, prayed for rejecting
the application.
4. Heard Advocate Ms. Kiran Yadav for the complainant and
Advocate Ms.Sheetal Gurakhia for the accused.
5. On hearing both sides, it is crystal clear that there was
commercial transaction in between complainant and accused in respect of
sell of diamonds. It is the case of the complainant that principle amount
of Rs.88,75,900/- was balance towards the accused against the alleged sell
of diamonds and in discharge of said liability the cheque is issued by him.
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Per contra the accused has denied issuing cheque against said outstanding
amount. According to him said cheque is not issued against outstanding
amount. In the facts and scenario the question crops up whether the
defence of not issuing cheque in discharge of any legal liability would
survive at this stage of the proceeding? Absolutely the answer of the
question is in the negative.
6. What is important to be looked into by the court at this
juncture, whether the complainant has prima facie proved issuance of the
cheque against liability of the accused? Whether the same is dishonoured
and legal demand was made?
7. The cheque belongs to the account of the accused. The same
is neither disputed nor signature of the accused is in dispute. Now coming
to the averments made by the complainant in the complaint. The
averments shows issuing cheque Exh.29 by the accused against the
outstanding balance amount of diamonds sold to him. Said contention is
supported by the acknowledgment letter Exh.27 drafted in Gujarati. The
same indicates a blanket undertaking given by the accused admitting the
transaction and outstanding liability coupled with issuing this cheque to
the complainant. The signature on the undertaking if compared with the
signature of the accused on the cheque by naked eyes, the same is
identical and similar.
8. The cheque, acknowledgment letter etc. prima facie
established the contention of the complainant on the point of existence of
legal liability. The complainant has produced Tax Invoice Exh.26 which
shows sell of diamonds by the complainant to the accused. A cheque is
not mere a piece of paper. It holds some legal value.
9. Complainant has prima facie proved the transaction and
alleged legal liability towards the accused. In view of Section 139 of the
Negotiable Instrument Act, there is reason to believe issuing of cheque by
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the accused in discharge of legal liability. Secondly, the defence taken by
the accused would have to be established during the trial by leading
appropriate evidence which at this juncture appears improbable or with a
remote possibility. Therefore, this is a fit case to invoke the powers
conferred upon this court under section 143-A of the Negotiable
Instrument Act, to grant Ad Interim Compensation considering the
probable time for conclusion of the trial. Hence, I pass following order.
O R D E R
1) The application is allowed.
2) The accused is directed to make payment of 20%
of cheque amount within 60 days to the
complainant as an interim compensation.
3) Order be uploaded on CIS.
4) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 31.12.2024 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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Order below Exh.20
CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate (First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 31.12.2024.
Transcribed and Typed on : 31.12.2024.
Order printed and Signed on : 31.12.2024.
Order Uploaded on : 31.12.2024.
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