Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 15/SS/2019
Filed on : 03/01/2019
Registered on : 03/01/2019
Decided on : 09/05/2023
Duration : 04Y. 04M. 06D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 15/SS/2019
CNR: MHMM190001522019
Exh. No.
Shri. Prakash Laxman Jadhav.
Age : 52 years, Occu : Services
R/o. Pavitradham CHS Hsg. Soc.
Flat No. 32, Near RTO
Kalyan West, TalKalyan
Dist. Thane. …Complainant
Versus
Shri. Nitin Ratnakar Makasare.
AgeAdult,
R/o. AWing, Near Sambhaji Rane Udyan,
Bldg No. 234, Room No. 9143,
Kannamwar Nagar No. 2,
Vikroli (E). ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Smt. Pooja Jadhav for the complainant
Advocate Shri. Sandesh Jadhav for accused.
JUDGMENT	JUDGMENT
(Delivered on 09/05/2023)
Accused is mired in the trial, for having committed an
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offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
(Hereinafter it is referred as 'N.I.Act' in short.)
Bonsai facts of the complaint are as under :
2] it is the case of complainant that he and accused both are
residing in the same society, namely Pavtridham Co.Op. Housing society
at Kalyan. Accused had posted an advertisement in Whatsapp group of
society stating that, he wants to sale his flat situated in the said society.
Accordingly, complainant approached to accused and after negotiation
he agreed to purchase said flat for an amount of Rs. 25,00,000/ and
accordingly gave an amount of Rs. 50,000/ to the complainant through
cheque by way of advance. It is further case of complainant that, he
tried to obtain loan from the bank, however his request for loan was
rejected by the bank on the ground that document of the flat of the
accused are not proper. Therefore, complainant canceled said
transaction and requested accused to refund his amount. Accordingly,
in order to repay said amount accused issued cheque bearing no.
303431 dated 24/09/2018 for an amount of Rs. 50000/ drawn from
his account maintained with Bank of Maharashtra. Complainant
presented said cheque for clearance with his banker namely Apana
Sahakari Bank, Powai Branch, however vide memo dated 07/11/2018,
said cheque returned unpaid with remark “Payment stopped by
drawer”.
3] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 17/11/2018 by RPAD, calling upon
accused to pay the cheque amount, within stipulated time. Notice was
duly served upon accused on 20/11/2018. As amount claimed in
notice, was not paid by the accused, complainant left with no other
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option than to knock the door of the court seeking justice and ipso Jure
case came before this court, which was filed on 03/01/2019.
4] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which accused
pleaded not guilty and opt for trial.
5] In order to prove guilt of accused, complainant examined himself
(C.W. 1) by filing himself affidavit in lieu of examinationinchief at
Exh. 13, vide section 145 of the Negotiable Instrument Act. He also got
examined Bank witness Vishakha Parab (C.W. 2) at Exh. 34. Besides
oral evidence, complainant has relied upon following documentary
evidence that includes:
Description of documents Exh. No.
Affidavit Exh. 22
Original cheque Exh. 23
Cheque returned Memo Exh. 37
Office copy of demand notice Exh. 24
Postal receipt Exh. 25
A. D. Card Exh. 26
6] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 39, wherein accused
has taken defence of falsely implication. Accused in support of his
defence accused examined himself at Exh. 40.
7] Complainant has filed his written notes of argument at Exh. 42,
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while Ld. Advocate for accused has argued orally.
8] Heard Ld. Advocate for both parties at length. Perused written
notes of argument. 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 “Payment
stopped by drawer”?
…. 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
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
.. Accused is
convicted.
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REASONS
Admitted/undisputed fact
9] 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
10] 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.
 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
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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.
11] 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;
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;
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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.
12] 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,
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
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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.
13] In order to prove his case, complainant examined himself
(C.W.1) by filing her affidavit of examinationinchief at Exh. 13,
wherein he has reiterated his case from the complaint. His evidence
shows that, he had agreed to purchase flat of the accused for an
amount of Rs. 25,00,000/, His evidence further shows that, he had
given an amount of Rs. 50000/ to the accused by way of advanced,
however documents of the said house were not complete and hence
bank refused to give the loan. His evidence further shows that hence
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said transaction was canceled and in order to repay said amount
disputed cheque was issued by the accused.
14] Ld. Advocate for accused has conducted crossexamination of
witness at length. From perusal of crossexamination and evidence of
accused it appears that accused has admitted his transaction with
complainant. He also admitted acceptance of Rs. 50,000/ from the
complainant as an advance against the sale of said house. He also
admitted issuance of cheque in favour of complainant and his signature
on said cheque. However, according to him, bank sanctioned loan of
Rs. 20,00,000/ only in favour of complainant and hence complainant
canceled said transaction. Thus, he tried to say that, said transaction
was not canceled due to defective documents but due to financial
problems of complainant. He has taken second defence that out of Rs.
50,000/ an amount of Rs. 20,000/ has been repaid by him to the
complainant, in cash and hence he is not liable to pay cheque amount to
him. According to him, complainant was harassing him by making
frequent call for repayment of his amount and therefore he issued blank
signed cheque in favour of complainant and by misusing that cheque,
this false complaint is filed. He also taken a defence that, he had not
instructed to the complainant to deposit said cheque for clearance and
on that ground also he is not liable to pay cheque amount.
15] Ld. Advocate for complainant has conducted his cross
examination at length wherein he clearly admitted that, he doesn't have
any documentary evidence to show that he has repaid an amount of Rs.
20000/ to the complainant in cash. It is necessary to note here that,
reason of cancellation of said transaction is not important to decide the
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said matter. It is not disputed by the accused that said transaction was
canceled and therefore he was liable to repay an amount of Rs.
50,000/ to the complainant. Defence taken by the accused that,
complainant was harassing him by making the call and hence he had
issued blank signed cheque in favour of complainant is not acceptable
and probable defence. Record clearly shows that he had received an
amount of Rs. 50,000/ from the complainant against the transaction of
house and after cancellation of said transaction, in order to repay said
amount disputed cheque was issued by him in favour of complainant.
Accused has failed to rebut the presumption u/s. 139 of N.I. Act.
Evidence on record clearly shows that disputed cheque was issued by
the accused in favour of complainant for discharging legally enforceable
liability. In result point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
16] In order to prove that cheque was dishonoured complainant
examined bank witness Vishakha Parab at Exh. 34. She has produced
on record account statement of complainant. According to her, said
cheque was dishonoured for the reason “Payment stopped by drawer”.
In crossexamination, suggestion was given on the part of accused that,
accused has issued instruction to the bank to stop payment and due to
which cheque was returned unpaid. Thus, it becomes clear that, vide
memo dated 07/11/2018, disputed cheque was returned unpaid. It is
matter of record that, complainant issued demand notice on
17/11/2018 i.e. within limitation. Notice was sent on correct address
of accused. Complainant has also produced on record postal receipts
and A.D. card which shows that notice was duly served upon accused
on 20/11/2018. Admittedly, accused did not pay cheque amount to the
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complainant even after service of notice. It is a matter of record that,
complainant has filed this complaint on 03/01/2019 i.e. within
limitation. In result point nos. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
17] Taking into consideration answer of points Nos. 1 to 5, it
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 : 09/05/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
18] 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 her stand on
the nature and quantum of the sentence, if any.
19] Upon asking on the point of sentence, accused submitted that he
is the only earning person in his family and hence prayed for leniency,
Ld. Advocate Sandesh Jadhav for accused has also prayed to show
leniency to the accused. On the other hand, complainant and his
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advocate are absent when called.
20] Heard both parties and their Ld. Advocates at length on the point
of sentence. So far as granting compensation is concerned, Hon'ble
Supreme Court in the case of M/s. Kalamani Text and another v/s. P.
Balsubramanian, decided in Special Leave Petition(Cri) No.
1876/2018 dated 10/02/2021 has given certain guidelines and for
ready reference relevant paras from said judgment are quoted below :
“As regard to the claim of compensation raised on behalf of the respondent,
we are conscious of the settled principles that the object of Chapter XVII of
the NIA is not only punitive but also compensatory and restitutive. The
provisions of NIA envision a single window for criminal liability for dishonour
of cheque as well as civil liability for realization of the cheque amount. It is
also well settled that there needs to be a consistent approach towards
awarding compensation and unless there exist special circumstances, the
Courts should uniformly levy fine up to twice the cheque amount along with
simple interest at the rate of 9% per annum.”
21] Present Matter is pending since 2019. Considering nature of
offence, period since which case is pending, considering purpose of
legislature behind enactment of Section 138 of N.I. Act and guidelines
laid down by Hon'ble Supreme Court in relation to compensation
Suitable and appropriate compensation alongwith penal action against
the accused would suffice the purpose and also meets the ends of
justice. In result, I proceed to pass following order :
ORDER
i. The accused Mr. Nitin Ratnakar Makasare 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 hereby sentenced to pay compensation of Rs. 90,000/
(Rs. Ninety Thousand Only) to the complainant, vide Section 357(3) of
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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 simple imprisonment for the period
of Six month.
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.
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. Accused is informed about having his right to prefer appeal
against this judgment within a statutory period before Hon'ble Sessions
Court.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 09/05/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 09/05/2023
Typed On : 09/05/2023
Signed On : 09/05/2023
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