Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 136/SS/2018
CNR No. : MHMM19-000249-2018
Received On : 09/01/2018
Registered On : 09/01/2018
Decided On : 10/10/2024
Duration :Y-06, M-09 , D-01
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS), ANDHERI
(Court No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 136/SS/2018 Exh. 60
Mr. Subhash Sakharam Khaire
An Adult, aged about 54 years,
Residing at Room No. 572
Galli No. 11, Sai Nagar,
Marol Pipe line, Opp. Technical Area,
Andheri Kurla Road, Andheri (E),
Mumbai – 59. -- Complainant
Versus
Smt. Rekha Shivaji Shinde.
An Adult, Aged about 41 years,
Office Address
HR Department, MHK Department,
Airport Authority of India,
Parsiwada, Andheri (E), Mumbai – 400 099.
Residential Address.
Room No. 4, Bhola Bhaiya Chawl,
Katki Pada, Joshi Road,
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Dahisar Check Naka,
Dahisar (E), Mumbai – 400 068. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Advocate for the complainant – Mr. Alok Singh.
Advocate for the accused- Mr. Rahul Salve.
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JUDGMENT
(Delivered on 10th of October 2024)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“the Act” for short) for dishonor of four cheques for total amount of Rs.
4,00,000/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that he is working in H. K.
Department in Airport authority as a senior attendant. The accused is
also working in the same department and since 2009 there is cordial
relationship between accused and complainant. The complainant has
given monitory help to the accused and accused has returned the money
to complainant. In the month of February 2014, the accused wanted to
renovate her house and requested for Rs. 4,00,000/- as a friendly loan.
On 08/02/2014 the complainant has given friendly loan of Rs.
4,00,000/- to the accused. Accused has executed one receipt on 100/-
rupees stamp paper in favour of complainant. After four months the
complainant asked to the accused for the repayment of said amount but
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the accused has shown her difficulty and assured to return the said
amount within one year. In the month of June 2015, again the
complainant asked for the return of money to the accused. Again
accused assured to complainant to return the money within two years.
03. Complainant has further submitted that, after repeated
requests by the complainant, accused issued four cheques of dated
16/10/2017 bearing cheque no. 504766, 504767, 504768 and 504769
each for Rs. 1,00,000/-, all drawn on Canara Bank, Vile Parle (E)
branch, in favour of complainant. Thereafter, the complainant
deposited the above said cheques for encashment in his State Bank of
India, International Air Cargo Branch. The same were returned unpaid
from drawee bank with endorsement 'Payment stopped by drawer'.
Accordingly, the State Bank of India issued memo dated 31/10/2017.
Thereafter, he contacted the accused and requested to pay cheque
amount but the accused intentionally not paid said amount. Thereafter,
he issued demand notice dated 27/11/2017 to accused. The notice was
duly served on the accused but accused failed to pay cheque amount
within stipulated period. Hence, the complainant constrained to file
present complaint.
04. After recording statement of the complainant and perusing
all documents produced on record, process came to be issued against
the accused for the above offence. In response to summons, the accused
appeared. Particulars of offence recorded below Exh. 12 which were
read over and explained to the accused in vernacular, to which she
pleaded not guilty and claimed to be tried.
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05. Accused has conducted the cross-examination of the
complainant in which she has raised following defences:-
a) The agreement is false and bogus.
b) There is material alternation in the cheques.
c) The amount is not shown in income tax return to the
Income-tax Department.
d) The cheques were not issued for discharge of any
liability.
06. The statement of accused under Section 313 of the Code of
Criminal Procedure, 1972 (in short 'the Code') was recorded vide Exh.
44. In her statement U/s. 313 of the Code, she denied all the
contentions of the complainant.
07. Heard Ld. Counsel Mr. Alok Singh for complainant and Mr.
Rahul Kamble for Accused and also perused and considered the written
notes of argument filed by both parties at Exh. 57 and 59.
08. From perusal of complaint, record and defence of the
accused, following points arise for my determination. I have recorded
my finding and reasons thereon as under:
Sr. No. Points Findings.
1. Does the complainant prove that cheque No.
504766 (Exh. 28), cheque no. 504767 (Exh.
25), 504768 (Exh. 26) and 504769 (Exh. 27)
Yes.
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were drawn by accused for legally recoverable
debt or other liability?
2.
Does the complainant prove that the said
cheques returned unpaid for the reason
“Payment stopped by drawer”?
Yes.
3.
Does the complainant prove that he had issued
demand notice to the accused within
limitation demanding cheque amount?
Yes.
4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under Section 138 of the
Negotiable Instruments Act ?
Yes.
6. What order? The accused
is convicted.
09. In order to prove his case, the complainant has filed his
evidence affidavit as a (C.W.1) at Exh. 16. Complainant has also
examined one witness namely Mr. Kunal Tukaram Jagdhane (C.W.2) at
Exh. 51. The complainant also placed his reliance upon following
documents:
Description of documents Exhibit numbers
Declaration Exh. 23 and 24
Disputed cheques Exh. 25 to 28
Cheque returned memos Exh. 52 to 55
Office copy of notice Exh. 29
Postal receipts Exh. 30 and 31
Returned envelope Exh. 32
A. D. card Exh. 33
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REASONS
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the complainant has filed his evidence affidavit as a (C.W.1) at
Exh. 16. As per his evidence, he and accused are working in the S. K.
Department in Airport authority and have cordial relationship between
them since 2009. The complainant has extended financial help and
accused has returned the same. In the month of February 2014,
accused asked for Rs. 4,00,000/- for renovation of her house.
Complainant has given Rs. 4,00,000/- to accused on 08/02/2014 and
accused has executed one receipt on 100/- rupees stamp paper. After
four months, complainant asked for return of money to accused ansd
accused sought some time and on lastly accused issued cheques.
11. It has further came in the evidence of complainant that, after
repeated request of complainant, accused issued four cheques of dated
16/10/2017 bearing cheque no. 504766, 504767, 504768 and 504769
each for Rs. 1,00,000/-, all drawn on Canara Bank, Vile Parle (E)
branch, in favour of complainant. Thereafter, the complainant
deposited the above said cheques for encashment in his State Bank of
India, International Air Cargo Branch. The same were returned unpaid
from drawee bank with endorsement 'Payment stopped by drawer'.
12. The accused has conducted the cross-examination of the
complainant. In her cross-examination, the accused has raised
following defences ,
a) The agreement is false and bogus.
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b) There is material alternation in the cheques.
c) The amount is not shown in income tax return to the
Income-tax Department.
d) The cheques were not issued for discharge of any
liability.
13. Before adverting towards the merit of case, it is necessary
to deal with some legal principles regarding presumptions contemplated
in Section 118 and 139 of the Act and standards of proof for its
establishment or also for rebuttal. The Hon'ble Supreme Court of India
in
T. Vasanta Kumar v/s. Vijay Kumar (2015) 8 SCC 378 has held that,
“the presumption mandated by Section 139 includes a presumption that
there exists a legally enforceable debt or liability. This is of course in
the nature of a rebuttable presumption and it is open to the accused to
raise a defence wherein the existence of a legally enforceable debt or
liability can be contested. However, there can be no doubt that there is
an initial presumption which favours the respondent complainant”.
14. The Hon’ble Supreme Court of India in the case
Rangappa V.
Mohan reported in AIR 2010 SC 1898, has held that, “
the presumption
mandated by Section 139 of the Act does indeed include the existence
of legally enforceable debt or liability.” The Hon’ble Supreme Court of
India in the case of K. Bhaskaran V/s. Sankaran Vaidhyan Balan and
another, 1999 (7) Supreme Court Cases 510, has held that,
“as the signature in the cheque is admitted to be that of the
accused, the presumption envisaged in Section 118 of the Act can
legally be inferred that, the cheque was made or drawn for
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consideration on the date which the cheque bears. Section 139 of
the Act enjoins on the court to presume that, the holder of the
cheque received it for the discharge of any debt or liability. The
burden was on the accused to rebut the aforesaid presumption.”
The Hon’ble Supreme Court of India in K. N. Beena V/s.
Muniyappan and another, 2001 (8) Supreme Court Cases 458 has
held that,
In view of the provisions contained in Section 118 and 139
the court has to presume that cheque had been issued for
discharging a debt or liability. However, the said
presumption could be rebutted by accused by proving the
contrary.”
The Hon’ble Supreme Court of India in the case of Hiten P. Dalal
V/s. Bratindranath Banerjee, 2001 (6), Supreme Court Cases 16 has
held that,
“It is obligatory on the court to presume the liability of the
drawer for the amount of the cheque in every case where
factual basis for such presumption is established. Such a
presumption can be rebutted by the drawer by proving on
evidence that the holder of the cheque had not received the
same towards the discharge of any liability. Such rebuttal
does not have to be conclusively established. The court must
either believe the defence to exist or consider its existence to
be reasonably probable. But mere explanation given by the
drawer, although plausible, held would not suffice. ”
15. In the present case, the accused has conducted the cross-
examination of complainant. Accused has not sent reply to the demand
notice of complainant. Therefore, it can be gathered that, accused has
not challenged the signature from cheques (Exh. 25 to 28). This shows
that, the signature of accused from cheques (Exh. 25 to 28) are not in
dispute. Therefore, the presumptions under Section 118 and 138 of the
Act are raised in favor of complainant.
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16. The Hon'ble Supreme Court of India in case of
M.S.
Narayan Menon @ Mani V/s. State of Kerala and another (Appeal (Cri.)
1012 of 1999 decided on 04/07/2006) has laid down the rules
regarding the standards of proof for establishment of case as well as of
rebuttal of defence in the case filed under Section 138 of the Act. The
Hon'ble Supreme Court of India has observed that
“It is not necessary for the defendant to
disprove the existence of consideration by way of direct
evidence. The standard of proof evidently is pre-
ponderance of probabilities. Inference of pre-ponderance of
probabilities can be drawn not only from the materials on
records but also by reference to the circumstances upon
which he relies. Presumption drawn under a statute has
only an evidentiary value. Presumptions are raised in terms
of the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another.”
17. The Hon'ble Supreme Court of India in case of Sumeti VIJ
V/s. M/s. Paramount Tech Fab, Criminal Appeal No(s) 292 of 2021,
(Arising out of SLP (Crl.) No (s). 8498 of 2019), in which the decision
of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another, 4 (2019)
18 SCC 106 is discussed and wherein it is laid down the procedure as to
how the accused can rebut the presumption under Section118 and 139
of the Act,
“The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and
debt did not exist or that under the particular circumstances
of the case the non-existence of consideration and debt is so
probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory
presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
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complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need
not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has to
be brought on record for getting the burden of proof shifted
to the complainant. To disprove the presumptions, the
accused should bring on record such facts and
circumstances, upon consideration of which, the court may
either believe that the consideration and debt did not exist
or their non-existence was so probable that a prudent man
would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied
upon are compelling, the burden may likewise shift again
on to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act. The accused
has also an option to prove the non-existence of
consideration and debt or liability either by letting in
evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in
the complaint, the case set out in the statutory notice and
evidence adduced by the complainant during the trial. Once
such rebuttal evidence is adduced and accepted by the
court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue”.
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18. The Hon'ble Bombay High Court in the case of
Vishnu Vs.
State of Maharashtra (Cri. Rev. Application No. 176/2015 decided on
24/01/2019) observed that,
“There cannot be any manner of dispute with
the proposition that once the presumption arising under
Section 118 read with Section 139 of the Act is raised, it can
be rebutted by the accused on preponderance of probability
at the trial. This can be done on the basis of cross-
examination of the complainant and his witnesses, if any,
and/or by leading independent defence evidence.”
19
. As accused has not challenged her signature on the cheques
(Exh. 25 to 28), the presumptions under Section 118 and 139 of the Act
are raised in favor of complainant. Therefore, in view of the
observations given in case of Rangappa V/s. Sri Mohan (Cited Supra),
the accused has to raise a probable defence which creates doubts about
the existence of a legally enforceable debt or liability and the
prosecution can fail. It also makes clear that, mere denial is not
sufficient to rebut the presumption which is raised in favor of
complainant. As observed in the case of
Vishnu Vs. State of Maharashtra
(cited supra), accused has many modes to bring on record his defence
e.g. by replying upon notice, complaint, complainant's evidence and
also by mode of cross examination, his own testimony or of other
witnesses, if cross examined and also through statement of accused
recorded under section 313 of the Code. In the present case, the
accused has conducted cross-examination of complainant wherein she
raised following defence,
a) The agreement is false and bogus.
b) There is material alternation in the cheques.
c) The amount is not shown in income tax return to the
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Income-tax Department.
d) The cheques were not issued for discharge of any
liability.
The accused has not filed on record that, he has sent reply to the
demand notice. Further, in her statement recorded U/s. 313 of the
Code, she denied all the contentions of the complainant.
20. The accused has conducted the cross-examination of the
complainant and in his cross-examination, the accused has put some
questions to the complainant in respect of the declaration and the bond
executed by the accused. In his cross-examination, the complainant has
admitted that, he is a Government Employee and he has holiday on
Sunday and Saturday. As per the submission of Ld. Counsel for the
accused, the date mentioned in the declaration and bond is of holiday.
Ld. Counsel for the accused further submitted that, the witnesses
mentioned in the complaint as well as evidence affidavit namely Ashok
Shinde, Surekha Shirale and P.G. More are also working with
complainant and therefore it is his submission that, it is highly
impossible that on holiday, all these persons were gathered together and
in their presence, the bond as well as declaration were executed by the
accused.
21. Ld. Counsel for the accused further invited my attentions
towards the cross-examination of the complainant on the point of
declaration and bond which is filed on Exh. 23 and 24. the complainant
has admitted that, these documents bears his signature. So far as the
suggestion put up by the accused that, the declaration at Exh. 24 is not
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executed by the accused and it does not bear her signature, then the
complainant remained silent and submitted that, he do not want to say
anything on that suggestion. So far as the suggestion in respect of Exh.
23 is concerned, he denied the suggestion put to him that, the
document Exh. 23 is false and fabricated and does not bear the
signature of accused. Again the complainant has denied the suggestions
in respect of these documents as these documents were falsely
prepared.
22. I have perused Exh. 23 and Exh. 24, it seems that, as per
Exh. 23 the accused has acknowledged the receiving amount from the
complainant and also promised to pay it to the complainant. As per
Exh. 24 the accused has declared that she will pay the amount and she
could not pay the amount due to her financial difficulty. So far as the
defences are taken by the accused are concerned that the complainant
and accused and government employee and it is not possible for them
to execute these documents on holiday. As per my view, no stretch of
imagination, the government employee can not execute the document
on holidays as these documents are not registered documents. Further,
the complainant has denied the suggestions about the preparation of
false and fabricated document. Therefore, mere denial of signature by
the accused is not sufficient to disprove the document.
23. Ld. Counsel for the accused has further submitted that, the
disputed cheques have material alternation and as per Section 87 of the
N. I. Act, the instruments become void. As per his submission that, the
two different inks were used in the cheque at Exh. 25 to 28. As per the
admission of complainant, the cheques were given to him by the
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accused on 15/10/2017 and the cheques were deposited by the
complainant on 27/10/2017 that means after 13 days of its issuance. I
have minutely perused the cross-examination of complainant and it
seems that, there is no any admission from the complainant that, there
is an alternation in the cheques at Exh. 25 to 28. I have perused
Section 87 of N .I. Act, which reads as follows:-
“Effect of material alteration:- Alteration by indorsee. Any
material alteration of a negotiable instrument renders the same
void as against any one who is a party thereto at the time of
making such alteration and does not consent thereto, unless it
was made in order to carry out the common intention of the
original parties. Alteration by indorsee. And any such alteration,
if made by an indorsee, discharges his indorser from all liability
to him in respect of the consideration thereof.”
I have also perused the bank memo at Exh. 52 to 55 and it seems that,
the cheques were dishonoured due to payment stopped by drawer and
the cheques were not returned with reason that there is material
alternation in the cheque. Ld. Counsel for the accused submitted that,
the alternation is material and therefore cheques becomes void. He
placed reliance on the decision of Hon’ble Bombay High Court in M/s.
Pinak Bharat and Co. V/s. Shri. Anil Ramrao Naik and another, criminal
appeal no. 1630 of 2011 along with criminal appeal no. 1631 of 2011,
decided on 02/12/2022. I have also perused the decision of Hon’ble
Supreme Court of India in Bir Singh V/s. Mukesh Kumar, 2019 SCC
Online S.C. 138. It has been observed in para no. 42 that,
“42. In the absence of any finding that the cheque in question was
not signed by the respondent-accused or not voluntarily made over
to the payee and in the absence of any evidence with regard to the
circumstances in which a blank signed cheque had been given to
the appellant-complainant, it may reasonably be presumed that the
cheque was filled in by the appellant-complainant being the payee
in the presence of the respondent-accused being the drawer, at his
request and/or with his acquiescence. The subsequent filling in of
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an unfilled signed cheque is not an alteration. There was no change
in the amount of the cheque, its date or the name of the payee. The
High Court ought not to have acquitted the respondent-accused of
the charge under Section 138 of the Negotiable Instruments Act.”
Therefore, I do not found any material alternation on the cheque at
Exh. 25 to 28 by which these cheques becomes void.
24. Another submission made by the accused that, the
complainant has not shown the amount given to the accused to the
Income-tax department and therefore complainant cannot recover the
said amount. I have perused the decision of Hon’ble Bombay High
Court, Nagpur Bench in the case of Prakash Madhukarrao Desai V/s.
Dattatraya Sheshrao Desai, Criminal Appeal No. 795/2018. It has been
observed in para no. 18 that,
18. In view of the aforesaid discussion, it is held that a transaction
not reflected in the books of accounts and/or Income Tax returns of
the holder of the cheque in due course can be permitted to be
enforced by instituting proceedings under Section 138 of the Act of
1881 in view of the presumption under Section 139 of the Act of
1881 that such cheque was issued by the drawer for the discharge of
any debt or other liability, execution of the cheque being admitted.
Violation of Sections 269-SS and/or Section 271-AAD of the Act of
1961 would not render the transaction unenforceable under Section
138 of the Act of 1881. The decisions in Krishna P. Morajkar, Bipin
Mathurdas Thakkar and Pushpa Sanchalal Kothari (supra) lay down
the correct position and are thus affirmed. The decision in Sanjay
Mishra (supra) with utmost respect stands overruled.
Perusal of above decision, it makes clear that, though the amount is not
shown in income tax return to the Income-tax department, then also the
said transaction comes within the purview of Section 138 of Negotiable
Instruments Act.
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25. Ld. Counsel for the accused submitted that, the
complainant had no capacity to lend money to the accused. He invited
my attention towards the cross-examination of complainant wherein
complainant has admitted that, in his bank account there was no
amount of Rs. 50,000/- or more than that was lying in any point of
time. He further admitted that, he has borrowed Rs. 1,00,000/- from
his nephew Manoj Khaire, Rs. 2,10,000/- was withdrawn by him from
the bank from time to time and was kept in his house. Ld. Counsel for
the accused submitted that, the complainant had no capacity to pay the
amount to the accused. He has placed reliance on the decision of
Hon’ble Supreme Court of India in K. Subramani V/s. K. Damodara
Naidu, Criminal appeal no. 2402 of 2014, decided on 13/11/2014. I
have perused the cited decision. I have perused the decision of Hon’ble
Supreme Court of India in P. Rasiya V/s. Abdul Nazer and Anr. ,
Criminal appeal No. 1233 -1235 of 2022, (Arising out of SLP (Cri.) Nos.
7430- 7432/2022 @ D.No.13470 of 2019), decided on 17/08/2022. It
has been observed that,
“7. Feeling aggrieved and dissatisfied with the judgment and orders
passed by the Appellate Court affirming the conviction of the accused
under Section 138 of the N.I. Act, the accused preferred three different
Revision Applications before the High Court. By the impugned common
judgment and order, the High Court has reversed the concurrent findings
recorded by both the courts below and has acquitted the accused on the
ground that, in the complaint, the Complainant has not specifically stated
the nature of transactions and the source of fund. However, the High
Court has failed to note the presumption under Section 139 of the N.I.
Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of
any debt or other liability. Therefore, once the initial burden is
discharged by the Complainant that the cheque was issued by the
accused and the signature and the issuance of the cheque is not disputed
by the accused, in that case, the onus will shift upon the accused to prove
the contrary that the cheque was not for any debt or other liability. The
presumption under Section 139 of the N.I. Act is a statutory presumption
and thereafter, once it is presumed that the cheque is issued in whole or
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in part of any debt or other liability which is in favour of the
Complainant/holder of the cheque, in that case, it is for the accused to
prove the contrary. The aforesaid has not been dealt with and considered
by the High Court. The High Court has also failed to appreciate that the
High Court was exercising the revisional jurisdiction and there were
concurrent findings of fact recorded by the courts below.”
26. Perusal of above decision it seems that, once signature on
the cheque is admitted then the onus shifts upon the accused to prove
the contrary. In the case in hand, it has came in the cross-examination
of the complainant that, he has taken an amount of Rs. 1,00,000/- from
his nephew namely Manoj Khaire and an amount of Rs. 2,10,000/- was
withdrawn by him from the bank which he was kept in the house in
order to give it to accused. He has withdrawn the said amount prior to
two months. Therefore, in the case in hand, the complainant has given
probable source and the said source came on record from the cross-
examination itself. Therefore, considering the above decision, the
contention of the accused cannot be accepted.
27. In the case in hand, the accused has not replied to the
demand notice sent by the complainant. The accused has not availed
the first opportunity available with him to put his defence. I have
perused the decision of Hon’ble Bombay High Court in Yogendra
Bhagatram Sachdev V/s. State of Maharashtra and Another, 2003 SCC
Online BOM 1121. I have minutely perused the cited decision. As I
discussed above in the case in hand, the accused has not availed the
opportunity available to him to send reply to the demand notice of
complainant and to put his initial defence.
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28. Ld. Counsel for the accused submitted that, the accused
rebutted the presumption available U/s. 118 and 139 of the Negotiable
Instruments Act. Further, the complainant has failed to prove legally
enforceable debt against the accused. He placed reliance on the decision
of Hon’ble Supreme Court of India in Rajaram Sriramulu Naidu (since
deceased) through L.R.s V/s. Maruthachalam (Since deceased) through
L.R.s, criminal appeal no. 1978 of 2013, decided on 18/01/2023. He
further placed reliance on the decision of Hon’ble Supreme Court of
India in Basalingappa V/s. Mudibasappa, Criminal appeal no. 636 of
2019, decided on 09/04/2019. I have minutely perused the cited
decision. In the case in hand, in the cross-examination of complainant,
the explanation about the source of money has came. Further the
document filed at Exh. 23 and 24 also support to the complainant.
Further the accused has not sent reply to the demand notice of
complainant and did not avail the first opportunity available with him
to put his defence. Further, I have perused the entire cross-examination
of complainant but in the cross-examination of complainant or in the
statement U/s. 313 of Cr.P.C. the accused has not given any reason as to
how the custody of cheque is with complainant. Therefore, the
presumption available with complainant U/s. 118 and 139 of N. I. Act is
not rebutted by the accused.
29. As I discussed above the accused has not brought on
record any material by way of cross-examination or in the statement of
313 of the Code. Therefore, it becomes clear that the accused has
utterly failed to rebut the presumption raised under Section 118 & 139
of the Act. Therefore, I hold that the complainant has duly proved that
accused has issued the subject cheque from his account in favour of the
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complainant towards the legally enforceable debt. Hence, point No. 1 is
answered in the “affirmative”.
As to Point No. 2:-
30. As per contentions and evidence of complainant, the
cheque No. 504766 (Exh. 28), cheque no. 504767 (Exh. 25), 504768
(Exh. 26) and 504769 (Exh. 27) were presented for encashment.
However, the cheques were returned with remark as 'Payment stopped
by drawer’. In support of said contentions, the complainant has
examined Kunal Tukaram Jagdhane (C.W.2) at Exh. 51. I have perused
the evidence of this witness and it seems that, this witness is a branch
Manager of State Bank of India, International Air Cargo Branch. As per
his evidence, the account of complainant was maintained with their
bank, wherein disputed cheques were presented for clearance but said
were returned unpaid for reason “Payment stopped by drawer” and the
memos are at Exh. 52 to 55. The memos are at Exh. 52 to 55. Perusal
of said cheque returned memos, it seems that, the cheques were
dishonoured for reason “Payment stopped by drawer”.
31. Nothing is brought on record by the accused to rebut the
presumption in respect of bank memos (Exh. 52 to 56). After perusal of
said memos, it is seen that cheque No. 504766 (Exh. 28), cheque no.
504767 (Exh. 25), 504768 (Exh. 26) and 504769 (Exh. 27) were
dishonored for reason 'Payment stopped by drawer'. However, nothing
brought by the accused on record to show her bonafide as well as also
to show that at the relevant time, the amount mentioned in the cheque
was pending in her account. Hence, no hurdle to held that the cheques
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were dishonored with reason 'Payment stopped by drawer'.
Consequently, point No. 2 is answered in the “affirmative”.
As to Point Nos. 3 and 4 :-
32. As per evidence of complainant (C.W.1), after dishonor of
cheques of total amount of Rs. 4,00,000/-, he issued demand notice
dated 27/11/2017 (Exh. 29). The said notice is served on the accused.
and the complainant has filed postal receipts (Exh. 30 to 31), Postal
acknowledgments at (Exh. 33). In support of said contention, the
complainant produced demand notice dated 27/11/2017 (Exh. 29),
postal receipts (Exh. 30 and 31) and postal acknowledgments (Exh.
33). Upon perusal of demand notice (Exh. 29) and postal
acknowledgments (Exh.33) it is seen that, the complainant issued
notice on 27/11/2017 to the accused on the following address :-
To,
Smt. Rekha Shivaji Shinde.
Residing at,
Room No. 4, Bhola Bhaiya Chawl,
Katki Pada, Joshi Road,
Dahisar Check Naka,
Dahisar (E), Mumbai – 400 068.
Office Address
HR Department,
MHK Department,
Airport Authority of India,
Parsiwada, Andheri (E),
Mumbai – 400 099.
33. It seems from the postal acknowledgments at Exh. 33
that, the said notice was delivered to accused. Learned counsel for the
accused submitted that notice could not be served within one day . I
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have perused the postal acknowledge and it seems that notice is served
and submission of accused can not be accepted. Therefore, there is no
hurdle to held that complainant sent demand notice on the correct
address of accused. I have perused the decision of Hon’ble Supreme
Court of India in Greater Mohali Area Development Authority and
others V/s. Manju Jain and Others, (2010), 9 Supreme Court Cases 157.
Here it is necessary to mention the observations given by Hon'ble
Supreme Court of India in case of C. C. Alavi Haji V/s. Palapetty
Muhammeed and anr reported in All MR (Cri.) 2007. Wherein it is
observed by Hon'ble Supreme Court of India that,
“15. Insofar as the question of disclosure of necessary particulars
with regard to the issue of notice in terms of proviso (b) of Section
138 of the Act, in order to enable the Court to draw presumption
or inference either under Section 27 of the G.C. Act or Section 114
of the Evidence Act, is concerned, there is no material difference
between the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing the drawer
of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands
complied with. It is needless to emphasise that the complaint must
contain basic facts regarding the mode and manner of the issuance
of notice to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section 138 of
the Act, the Court is required to be prima facie satisfied that a case
under the said Section is made out and the aforenoted mandatory
statutory procedural requirements have been complied with. It is
then for the drawer to rebut the presumption about the service of
notice and show that he had no knowledge that the notice was
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of
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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, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made 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 Bhaskarans 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 the matter in hand also, as discussed earlier, it is duly
established that the complainant sent demand notice on the correct
address of accused. As observed by Hon’ble Supreme Court of India in
the case of
C. C. Alavi Haji V/s. Palapetty Muhammeed and anr. (cited
supra), when the notice is sent by registered post by correctly
addressing the drawer of the cheque, the mandatory requirement of
issue of notice in terms of Clause (b) of proviso to Section 138 of the
Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
34. As already discussed in earlier points, it becomes clear that
the subject cheques (Exh. 25 to 28) were dishonored on 30/10/2017
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for the reason of 'Payment stopped by drawer'. It is seen from the
record that, the notice (Exh. 29) was posted on 27/11/2017 to the
accused and so, it is seen to be sent within 30 days of dishonor of
cheques. As discussed earlier, notice is served to the accused on
28/11/2017. It is not defence of the accused that she repaid the cheque
amount within 15 days of notice and summons of this proceeding. So,
point Nos. 3 and 4 are answered in the “affirmative”.
As to Point No.5 :
35. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are proved by
the complainant. As already discussed in earlier points, it becomes clear
from memos (Exh. 52 to 55) that the cheques (Exh. 25 to 28) were
dishonored on 30/10/2017. The notice (Exh. 29) was sent on
27/11/2017 and so, it is seen to be issued within 30 days of dishonor of
cheques (Exh. 25 to 28). Therefore, the accused has to pay cheque
amount within fifteen days from 28/11/2017 but accused failed to pay
it. Therefore, the cause of action for this complaint was arose on
12/12/2017. The complainant has to file complaint with 30 days from
the day of cause of action. The complaint was filed on 09/01/2018.
Therefore, the complaint is seen to be filed within limitation. Hence, in
view of entire evidence of the complainant and failure of the accused to
rebut presumptions given under section 118 and 139 of the Act, it
becomes clear that the accused has committed an offence punishable
u/s 138 of the Act. Consequently, point No. 5 is answered in the
“affirmative”.
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36. In view of my findings recorded herein above on point
No.5, I am taking a pause to hear the accused in person, her advocate
but accused and her counsel are also absent. Further, the complainant
is present but his Counsel is absent. The matter is of the year 2018.
Hence, it won't be proper to wait further by putting the case on
hibernation.
37. Further it would not be illegal to pass the Judgment of
conviction in absence of accused as Sec. 353 (6) and Sec. 418 (2) of
Code of Criminal Procedure empowers the court to pronounce
Judgment even of conviction in absence of accused and to issue
conviction warrant if court find it to be just and proper. Hence, coupling
the provisions laid down under section 353(6) and 418(2) of Code of
Criminal Procedure with the guidelines to dispose of the old cases
expeditiously. Hence, I found it to be just and proper to pass the
Judgment of conviction in absence of accused where the accused is bent
upon to cause delay rather exercising his rights for defence. Thus, I do
not find any reason to keep the case pending when accused himself is
not willing to defend himself or even to appear before court.
Considering the age of case and the chances given to the accused I find
it to be justifiable and proper not to wait further and pronounce the
Judgment in absence of accused.
38. Admittedly the accused has given sufficient opportunity to
make payment of the cheques from notice of the complainant till
conclusion of trial but accused failed to make it. Therefore, in order to
deter the human tendency to handover cheque without intending to
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honour the same, the punishment is required to impose upon the
accused rather than giving benefit of Probation of Offenders Act.
39. The object of the Act is to enhance the credibility of the
negotiable instruments. The cheques involved in the case in hand is
total amount of Rs. 4,00,000/-. In the present matter, on 30/10/2017
the disputed cheques were presented to the drawee bank. If it would
have had encashed regularly, complainant could have received the
amount in the month of October 2017. That amount is admittedly lying
with the accused. The Hon’ble Supreme Court of India in the case of
R.Vijayan V. Baby and anthers AIR 2012 SC 528, has discussed and
expressed several aspects to determine the amount of compensation and
interest on the cheque amount. Para Nos. 14 to 18 of the above
judgment needs to be reproduced here and those are as under:
“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
the power to levy fine upto twice the cheque amount
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
Direction to pay compensation by way of restitution in
regard to the loss on account of dishonour of the cheque
should be practical and realistic, which would mean not only
the payment of the cheque amount but interest thereon at a
reasonable rate. Uniformity and consistency in deciding
similar cases by different courts, not only increase the
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice.”
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40. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding 9
% per annum interest on the cheques amount by way of compensation
to the complainant. If interest on cheque total amount (Rs. 4,00,000/-)
at the rate of 9 % p.a. is calculated for the period of 81 months i.e. from
the filing of present complaint (09/01/2018 to 10/10/2024), it comes
to Rs. 2,43,000/-. Thus, the amount of Rs. 6,43,000/- is necessary to
give to the complainant as an compensation.
41. The object of the Act is to enhance the credibility of the
negotiable instruments. There is no criminal antecedent of accused
came on record. Thus, after considering said circumstances, amount of
cheques, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for two months will be proper and justified.
42. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed
ORDER
1. Accused Smt. Rekha Shivaji Shinde, Age : 43 years
convicted under Section 255 (2) of the Code of
Criminal Procedure, 1973 for an offence punishable
under Section 138 of the Negotiable Instruments Act,
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1881 and sentenced to suffer simple Imprisonment
for two months.
2. Accused is directed to pay compensation Rs.
6,43,000/- (Rs. Six Lacs Forty Three Thousand Only)
to the complainant within three months from today,
in default to suffer Simple Imprisonment for three
months.
3. Accused to surrender to her bail bond.
4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
6. Today i.e. on the date of judgment accused remained
absent, hence issue standing Non-bailable warrant against
the accused for her arrest through concerned police
station for execution of sentence in view of Section 418 (2)
of Cr.P.C.
7. The copy of this Judgment shall be send to the
convicted accused, free of cost, in view of section
363(1) of the Code of Criminal Procedure, 1973.
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8. Dictated and pronounced in open court.
Sd/-
Mumbai (Y. P. Pujari )
Date:- 10/10/2024 Judicial Magistrate (First Class)
48th Court, Andheri, Mumbai.
Dictated On : 10/10/2024
Typed On : 10/10/2024
Signed On : 10/10/2024
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