Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 /16 C. C. No. 09/SS/2018
Filed on : 02/01/2018
Registered on : 02/01/2018
Decided on : 18/06/2022
Duration : 04Y. 05M. 16D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 09/SS/2018
CNR: : MHMM190000482018
Exh. No. 46
Mr. Vishnu Vithal Auti.
Adult, Indian inhabitant of Mumbai.
Residing at 100/A, John Pereira House,
Marol Village, Andheri (E),
Mumbai – 4000 59 ...Complainant
V/s.
Mr. Mangesh Jayram Katalkar
Room No. 1, Devi Charan Chawl,
Near Sapatashringi Mandir, Kajupada,
Sakinaka, Mumbai – 400072. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Shri. D. R. Mishra for the complainant.
Advocate Shri. Rakesh Singh for the accused.
JUDGMENT	JUDGMENT
(Delivered on 18/06/2022)
Accused are mired in the trial, for having committed an
offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
-- 1 of 16 --
2 /16 C. C. No. 09/SS/2018
(Hereinafter it is referred as 'N.I.Act' in short.)
Case of the complainant in nutshell is as under :
2] It is the case of complainant that, there was friendly relation
between him and accused. In the year 2016 accused approached to
him requesting friendly loan of Rs. 1,00,000/. Considering urgency of
accused, complainant gave Rs. 1,00,000/ to him vide cheque no.
387378 drawn from his account maintained with Uco Bank, Marol
Branch, Andheri (E), Mumbai. Thus, an amount of Rs. 1,00,000/ was
credited in the account of accused on 23/06/2016.
3] It is further case of complainant that, in order to repay this
amount, accused issued cheque bearing no. 1000018 dated 08/11/2017
for an amount of Rs. 1,00,000/ drawn from his account maintained
with Kurla Nagrik Sahakari Bank Ltd., Kajupada Branch, Mumbai.
4] As per instruction of accused, complainant presented said cheque
for clearance with his banker namely Uco Bank, Marol Branch, Mumbai.
However, vide memo dated 09/11/2017 cheque was returned unpaid
for reason “Funds Insufficient” in the account of drawer.
5] Thereafter, complainant issued legal demand notice to the
accused on 21/11/2017, calling upon him, to pay cheque amount
within 15 days from the date of service of notice on him. The said
notice was not received by the accused and therefore it was returned on
23/11/2017 with evasive remark. Therefore, again on 30/11/2017
complainant sent demand notice to the accused and by this time notice
was duly served upon accused. Inspite of service of notice, accused did
not pay cheque amount to complainant. As due amount is not
-- 2 of 16 --
3 /16 C. C. No. 09/SS/2018
arranged, complainant left with no other option, than to knock the
doors of the court seeking justice and ipso Jure case came before this
court.
6] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused was summoned. Post issuance of process,
presence of accused was secured before the court and he was submitted
to bail. Substance of accusation was read over to accused, to which he
pleaded not guilty and opt for trial. Considering nature of offence, this
case is a tried as a summons trial case.
7] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 21 as per
section 145 of the Negotiable Instrument Act. So also he got examined
one Mr. Laxman Bhagwat (C.W. 2) at Exh. 34. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
Sr. No. Description of documents Exh. No.
1. Loan agreement Exh. 22
2. Original cheque Exh. 23
3. Cheque returned memo Exh. 24
4. Office copy of demand notice Exh. 25
5. Postal receipt Exh. 26 and 27
6. Returned envelope Exh. 28
8] After closer of complainant's evidence, statement of accused vide
section 313 of Cr.P.C. was recorded vide Exh. 41 wherein accused has
-- 3 of 16 --
4 /16 C. C. No. 09/SS/2018
denied case of complainant and taken a defence of falsely implication.
9] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of complainant at Exh. 42 and written
notes of argument filed on behalf of accused at Exh. 45.
10] In view of accusation and argument of both parties following
points arise for my determination and I have recorded my findings
thereon as follows:
Sr.
No.
Points Findings
1. Does complainant prove that disputed
cheque was issued by the accused, in favour
of complainant for discharging legal
enforceable liability?
…. In the
affirmative
2. Does complainant prove that cheque was
returned unpaid for reason “Funds
Insufficient”?
…. In the
affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
…. In the
affirmative
-- 4 of 16 --
5 /16 C. C. No. 09/SS/2018
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
.. Accused is
convicted
REASONS
Admitted/undisputed fact
11] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the
account of accused and it bears his signature.
AS TO POINT NO. 1
12] The accused is roped in the offence punishable u/s. 138 of the
N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
-- 5 of 16 --
6 /16 C. C. No. 09/SS/2018
 The payee or the holder in due course of the cheque makes a
demand for the payment of said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of
the receipt of the information by him from the bank regarding
dishonor of the cheque as unpaid.
 The drawer of the said cheque fails to make payment of said
amount of money to the payee or holder in due course of the
cheque within 15 days from the receipt of the said notice.
 The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
 The drawer of the said cheque failed to rebut the presumption u/s.
118 and 139 of the N.I. Act.
13] Before going further, it is necessary to mention here that as per
Section 139 of N.I. Act, there is a presumption in favour of holder of
cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
-- 6 of 16 --
7 /16 C. C. No. 09/SS/2018
d) as to time of transfer . that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements. that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
f) as to stamp. that a lost promissory note, bill of exchange or
cheque was duly stamped;
g) that holder is a holder in due course. that the holder of a
negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof, by
means of an offence or fraud, or has been obtained from the
maker or acceptor thereof by means of an offence or fraud, or
for unlawful consideration, the burden of proving that the
holder is a holder in due course lies upon him.
Section 139. Presumption in favour of holder. 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.
14] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
-- 7 of 16 --
8 /16 C. C. No. 09/SS/2018
Section 139 of the said act plays significant role. In view of express
provision of section 139 of N.I. Act a presumption shall be drawn that
the holder of cheque, received the cheque, of the nature referred to in
Section 138 for the discharge of any debt or other liability unless
contrary is proved. Thus, it gives power to court to presume unless
contrary is proved that the holder of cheque received the cheque for
discharge in whole or in part of any debt or other liability. The word
“shall presume” as per Section 4 of Indian Evidence Act means
whenever it is directed by this act, that the court shall presume a fact, it
shall regard such fact as a proved unless and until it is disproved. Thus,
the burden of proof as to cheque has not been issued as a legal debt or
liability is always on accused and it is for him to rebut said
presumption. A useful guidance on the said point can be taken from the
verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
15] In order to prove his case, complainant has examined himself by
filing his affidavit of examinationinchief at Exh 21 and Mr. Laxman
Bhagwat (C.W. 2) at Exh. 34. Complainant through his evidence on
-- 8 of 16 --
9 /16 C. C. No. 09/SS/2018
affidavit has reiterated his case from the complaint. His evidence shows
that he had given an amount of Rs. 1,00,000/ to the accused through
cheque. He has produced on record his bank account passbook, which
shows that on 23/06/2016 an amount of Rs. 1,00,000/ was given to
accused Mangesh Katalkar vide cheque no. 387378. According to him,
in order to repay this amount, disputed cheque dated 08/11/2017 for
an amount of Rs 1,00,000/ was issued by accused in his favour.
16] It has come in the evidence of Laxman Bhagwat (C.W. 2) that
accused had approached to him for an amount of Rs. 1,00,000/.
Therefore, he took him towards the complainant and accordingly,
complainant had given an amount of Rs. 1,00,000/ to the accused vide
bearer cheque no. 387378. According to him, he was the mediator
between complainant and accused for disputed loan transaction.
17] Ld. Advocate for accused took crossexamination of complainant
as well as Mr. Bhagwat (C.W. 2) at considerable length. From perusal
of crossexamination, it appears that accused has not denied that
disputed cheque is drawn from his account so also his signature on the
cheque is not denied by the accused. From perusal of crossexamination
it appears that accused has not taken any defence about the issuance of
cheque or as to how disputed cheque of his account came into the
possession of complainant. As the accused has admitted his signature
on cheque, it is sufficient to raise the presumption u/s. 139 of N.I. Act
in favour of complainant. Therefore, it is for the accused to rebut said
presumption by adducing probable evidence.
18] In crossexamination it was suggested to the complainant that he
-- 9 of 16 --
10 /16 C. C. No. 09/SS/2018
is engaged in the business of money lending. However, complainant
has denied said suggestion. As discussed earlier, no suggestion is given
on the part of accused, as to why disputed cheque was issued by him in
favour of complainant. It appears that vide agreement for loan filed at
Exh. 22, accused has acknowledged his liability of repayment of loan of
Rs. 1,00,000/ to the complainant. In crossexamination, he has denied
his signature on the said document. According to him, complainant
himself has put signature of accused on the agreement of repayment at
Exh. 23. However, except suggestion no any evidence is brought on
record on behalf of accused. So also through crossexamination of Mr.
Laxman Bhagwat (C.W. 2) nothing has come on record to support the
defence of accused. It is also argument of Ld. Advocate for accused that
accused has not received loan of Rs. 1,00,000/ from the complainant.
But documentary evidence i.e. the bank statement clearly shows that
accused had withdrawn an amount of Rs. 1,00,000/ from the account
of complainant through a bearer cheque. In such circumstances, it was
for the accused to prove that he had not received loan from the
complainant. Besides that, it was for the accused to show that why
disputed cheque was issued by him in favour of complainant or how
disputed cheque came into the possession of complainant. As discussed
earlier evidence of accused is totally silent to that effect. Thus, oral and
documentary evidence available on record clearly shows that, disputed
cheque was issued by the accused in favour of complainant for
repayment of loan of Rs. 1,00,000/. Accused has failed to rebut
presumption u/s. 139 of N.I. Act. In result point no. 1 is answered in
the affirmative.
AS TO POINT NO. 2 TO 5
19] In order to prove that cheque was returned unpaid for
-- 10 of 16 --
11 /16 C. C. No. 09/SS/2018
reason “Funds Insufficient”, complainant has relied upon his own oral
evidence in addition to documentary evidence i.e. cheque depositing
slip, cheque return memo etc. Said memo clearly shows that cheque
was returned unpaid for a reason “Funds Insufficient” in the account of
drawer. Accused has not denied fact of dishonour of cheque. In fact, in
his statement recorded u/s. 313 of Cr.P.C. accused has admitted that,
disputed cheque has dishonoured for a reason “Funds Insufficient” in
his account. As per section 146 of N.I. Act, court shall in respect of
every proceeding under this chapter, on production of bank slip or
memo having thereon official mark denoting that cheque has been
dishonored, presume the fact of dishonor of such cheque, unless and
until such fact is disproved. Therefore, it remains proved that cheque
was dishonored for a reason “Funds Insufficient”.
20] In order to show that statutory demand notice was issued
to accused within statutory period, complainant has filed on record
office copy of notice at Exh. 25. Postal receipts at Exh. 26 and 27 and
returned envelope at Exh. 28. Thus, record shows that complainant had
sent demand notice to the accused on 22/11/2017 and 30/11/2017. It
appears that said notice was returned with endorsement “Not Known”.
It is the case of complainant that he had issued notice to the accused on
his correct address. In crossexamination, complainant has admitted
that he had sent notice to the accused on same address. However, he
did not produce any evidence on record to show that notice was duly
served upon accused. From perusal of entire crossexamination, it
appears that accused has not taken a defence that address shown in the
notice is not his correct address.
21] In written notes of argument Ld. Advocate for accused has stated
-- 11 of 16 --
12 /16 C. C. No. 09/SS/2018
that complainant has failed to prove that notice was duly served upon
accused. Besides that it is also his contention that notice was not sent
on the correct address of the accused. In agreement for repay address
of accused is shown as room no. 14, RamAkbar Pandey Chawl,
Kajupada Pipeline, Near Ganesh Maidan, Sakinaka, Kurla (W), Mumbai.
However, said notice was sent by the complainant on the address of
accused from Devicharan Chawl, Kajupada, Sakinaka, Kurla (W),
Mumbai – 72. It appears that in affidavit of examinationinchief,
complainant has clearly stated that accused was residing at the address
given in demand notice and same address is mentioned by him in title
clause of the complaint. As discussed earlier, accused has not denied
his address shown in the title clause of complaint or notice. Therefore,
argument of Ld. Advocate for accused that notice was not sent on
correct address of accused cannot be accepted. Admittedly, notice was
sent to the accused on the address given in complaint through
registered post. As per Section 27 of General Clauses Act it is to be
presumed that notice was duly served upon accused since it was sent on
his correct address. Certainly, it was for the accused to rebut said
presumption by adducing evidence to show that notice was not sent on
his correct address and it was not served upon him.
22] Besides that in view of judgment passed by Hon'ble Supreme
court in the case of C.C. Alavi Haji V/s. Palapetty Muhammed
decided in criminal appeal no. 767/2007 dated 18/05/2007,
defence of nonservice of notice is not available to the accused. Hon'ble
Supreme Court in para No. 17 of the judgment has observed as under :
“It is also to be borne in mind that the requirement of giving of notice is
a clear departure from the rule of Criminal Law, where there is no
stipulation of giving of a notice before filing a complaint. Any drawer
who claims that he did not receive the notice sent by post, can, withing
-- 12 of 16 --
13 /16 C. C. No. 09/SS/2018
15 days of receipt of summons from the court in respect of the
complaint under Section 138 of the Act, make payment within 15 days
of receipt of summons (by receiving a copy of complaint with the
summons) and, therefore, the complaint is liable to be rejected. A
person who does not pay within 15 days of receipt of the summons
from the court along with the copy of the complaint under Section 138
of the Act, cannot obviously contend that there was no proper service of
notice as required under Section 138, by ignoring statutory
presumption to the contrary under section 27 of the G.C. Act and
section 114 of the Evidence Act. In our view, any other interpretation
of the proviso would defeat the very object of the legislation. As
observed in Bhaskaran Case (Supra), if the giving of notice in the
context of Clause (b) of the proviso was the same as the receipt of
notice a trickster cheque drawer would get the premium to avoid
receiving the notice by adopting different strategies and escape from
legal consequences of Section 138 of the Act. ”
In view of above observation it becomes clear that in order to take
defence of nonreceipt of notice, accused has to show willingness to
deposit cheque amount in the court within 15 days from the date of
service of summons on him. Certainly, in the case at hand, accused has
not shown willingness to deposit cheque amount within 15 days from
the date of service of summons. Therefore, said defence is not available
to the accused. Notice was sent on correct address of the accused and
therefore it is to be presumed that notice was duly served upon accused.
23] It appears that cheque was dishonored vide memo dated
09/11/2017, notice was issued by the complainant on 22/11/2017 and
30/11/2017 and complaint is filed on 02/01/2018. If it is presumed
that notice dated 22/11/2017 was served upon accused on 2nd day only
i.e. on 23/11/2017 then also complaint filed on 02/01/2018 is well
within limitation. In result point no. 2 to 5 are answered in the
affirmative.
AS TO POINT NO.6
24] Taking into consideration answer of points Nos. 1 to 5, it
-- 13 of 16 --
14 /16 C. C. No. 09/SS/2018
becomes clear that the complainant has duly proved his claim with
cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
probation to them vide Section 3 to 5 of the Probation of Offenders Act,
1958. Therefore, the accused is called upon to state on the point of
sentence.
(K. G. Sawant)
Date : 18/06/2022 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
25] I explained to accused that, he is held guilty for the
offence of the dishonor of cheque and that the N.I. Act has provided
punishment to the offence of imprisonment upto two years and fine
upto twice of the cheque amount. Thereafter, I asked the accused to
clarify his stand on the nature and quantum of the sentence, if any.
26] Upon asking on the point of sentence, the accused and his
advocate has submitted that accused is a old aged person and he is from
poor family. He has to support his family and family members are
depends on him. Hence, he prayed for leniency.
27] On the other hand complainant who is personally present in the
court did not say anything on the point of sentence. Ld. Advocate for
complainant is absent when called.
28] Having heard both parties at considerable length and Considering
-- 14 of 16 --
15 /16 C. C. No. 09/SS/2018
facts of this case, it appears that complainant had advanced amount to
the accused in the year 2016 through cheque. Almost 5 years have
been passed from the date of giving amount by complainant to the
accused. In such circumstance, considering purpose of legislature
behind the enactment of section 138 of N. I. Act, facts of this case, the
period since which matter is pending, economic condition with accused
and interest of the complainant, I am of the view that following
sentence would meet the ends of the justice. In result, I proceed to
pass following order:
ORDER
i. The accused Mr. Mangesh Jayram Katalkar is hereby convicted
for the offence punishable under section 138 of the Negotiable
Instrument Act, 1881 vide section 255(2) of the Code of Criminal
Procedure, 1973.
ii. Accused is sentenced to suffer simple imprisonment for period of
Three months and he shall pay compensation of Rs. 1,50,000/ (Rs. One
Lac Fifty Thousand Only) to the complainant vide Section 357(3) of the
Code of Criminal Procedure. Accused shall pay above amount of
compensation within two months from today, in default of payment of
compensation, accused shall suffer further simple imprisonment for the
period of 15 days.
iii. The amount of compensation realized from the accused, shall be
paid to the complainant, subject to expiry of the appeal period or the
orders of Honourable Appellate Court (if any).
iv. Accused to surrender his bail bonds.
-- 15 of 16 --
16 /16 C. C. No. 09/SS/2018
v. No question of setoff under section 428 of the Code of Criminal
Procedure, 1973, as the accused has not spent any period in the custody
during the trial.
vi. The copy of this Judgment be provided free of cost to the
accused, immediately after it is prepared, in view of section 363(1) of
the Code of Criminal Procedure, 1973.
vii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 18/06/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 18/06/2022
Typed On : 18/06/2022
Signed On : 18/06/2022
-- 16 of 16 --