Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 442/SS/2018
Filed on : 23/01/2018
Registered on : 23/01/2018
Decided on : 08/09/2023
Duration : 05Y. 07M.16D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 442/SS/2018
CNR: MHMM190007132018
Exh. No.
Shobha Rau Patil.
Adult, Age : 40 years, Occu : Service
residing at, room No. 2, Rajput Chawl,
Andheri (E), Mumbai 400093. …Complainant
Versus
1. Vijay S. Shelar.
Adult, Aged : 57 years, Occu : Business
Residing at, 103/B, Mangal Murti Apartment,
1st Floor, Kopri Naka, Tandul Bazar,
Virar (E), Palghar 401 305.
2. M/s. Shree Samarth Enterprises
01/A Wing, Shree Samarth Apartment,
Nityanand Nagar, Kopari, Chandansar Road,
Virar (E), Palghar – 401305. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate I.S. Pawar for the complainant
Accused in person.
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JUDGMENT	JUDGMENT
(Delivered on 08/09/2023)
Accused is mired in the trial, for having committed an
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] Complainant was in search of flat for her residence. She
came to know about the construction project of accused in the area of
Virar (E). Accused no. 1 Mr. Vijay Shelar is the proprietor of accused
no. 2 M/s. Shri. Samarth Enterprises engaged in the business of
Construction of building. Complainant booked a flat in the building
which was being constructed by the accused and accordingly he paid an
amount of Rs. 51000/ to accused no. 2 through cheque no. 561255
dated 06/05/2013, Rs. 1,00,000/ through cheque no. 561258 dated
13/08/2018 and further Rs. 60000/ through cheque no. 137210 dated
24/12/2023. As such, she has paid total amount of Rs. 2,11,000/
against the purchase of flat no. 202 in the newly constructed building
by the accused. It is further case of complainant that, accused could not
hand over possession of said flat to her and finally he agreed to repay
her amount and accordingly for repayment, he issued following four
cheques in her favour:
Sr. No. Cheque No. Date Amount
1. 019076 14/11/2017 50000/
2. 019077 14/11/2017 50000/
3. 019078 14/11/2017 50000/
4. 019079 14/11/2017 50000/
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3] Complainant presented above mentioned four cheques for
clearance with her banker ICICI bank,MIDC, Andheri (E), Mumbai.
However, all cheques returned unpaid vide memo dated 15/11/2017
with reasons “Funds Insufficient”.
4] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 11/12/2017 by speed post, calling upon
accused to pay the cheque amount, within stipulated time. Notice was
duly served upon accused but he failed to pay amount. As amount
claimed in notice, was not paid by the accused, complainant left with no
other option than to knock the door of the court seeking justice and ipso
Jure case came before this court, which was filed on 23/01/2018.
5] 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.
6] In order to prove guilt of accused, complainant examined herself
by filing her affidavit in lieu of examinationinchief at Exh. 15, vide
section 145 of the Negotiable Instrument Act. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
Description of documents Exh. No.
Receipts Exh. 37 to 39
Bank statement Exh. 40
Original cheques Exh. 41 to 44
Cheque returned memos Exh. 45 to 48
Office copy of demand notice Exh. 49
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Postal receipt Exh. 50 and 51
A. D. Card Exh. 52
Returned Envelope Exh. 53
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 55, wherein accused
admitted acceptance of amount from the complainant against booking
of flat and he also admitted issuance of four cheques in favour of
complainant.
8] Heard Ld. Advocate for complainant and accused in person. 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
cheques were issued by the accused, in
favour of complainant for discharging legal
enforceable liability?
…. In the
affirmative
2. Does complainant prove that cheques were
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
…. In the
affirmative
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amount ?
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.
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheques are 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.
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 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
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
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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;
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.
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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
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
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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 her case, complainant examined herself (C.W.1)
by filing his affidavit of examinationinchief at Exh.15, wherein she has
reiterated her case from the complaint. Her evidence shows that, she
had booked one flat in the newly constructed building by the accused
and against that she had paid an amount of Rs. 2,11,000/ to the
accused through cheque. Her evidence further shows that, accused did
not give ownership and possession of said flat and agreed to repay her
amount. Her evidence further shows that accordingly, he issued four
cheques for total amount of Rs. 2,00,000/. Her evidence further shows
that, accused had issued receipt in respect of payment made by her.
She has produced on record her bank statement at Exh. 40 and receipts
issued by the accused at Exh.37 to 39, which clearly shows that, she had
paid an amount of Rs. 2,11,000/ to the accused. Inspite of opportunity
given, accused did not conduct crossexamination of complainant and
hence matter proceeded without conducting crossexamination of
complainant on part of the accused. Besides that, in his statement
recorded u/s. 313 of Cr.P.C. accused has admitted acceptance of Rs.
2,11,000/ from the complainant and he also admitted issuance of
cheques in favour of complainant. Accused has not denied his liability
to pay cheque amount to the complainant. Thus, it becomes clear that,
disputed cheques were issued by the accused in favour of complainant
for discharging legal enforceable liability. In short, accused has failed
to rebut presumption u/s. 139 of N.I. Act. In result point no. 1 is
answered in affirmative.
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AS TO POINT NO. 2 TO 5
14] Admittedly, cheques have been dishonoured vide memo
dated 15/11/2017 for reason “Funds Insufficient”. It is matter of record
that, complainant has sent notice on 11/12/2017 and same was duly
served upon accused. Admittedly, accused has not paid cheque amount
within 15 days from the date of service of notice. It is a matter of
record that, complainant has filed this complaint on 23/01/2018 i.e.
within limitation. In result, point nos. 2 to 5 are answered in the
affirmative.
AS TO POINT NO.6
15] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved her 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, I do not find any special reasons
or justifications to extend the benefit of probation to accused 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 : 08/09/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
16] Inspite of repeatedly called neither accused nor his
advocate appeared in this matter. Record shows that accused is
avoiding to remain present in the matter without any justifiable
reasons. Therefore, I am constrained and compelled to proceed with
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the judgment in absence of accused. By his conduct accused has waived
off his chance to submit on the point of sentence. The offence
punishable U/s. 138 of N.I. Act is required to be tried summarily. For
such trials procedure contemplated in Code of Criminal Procedure for
the trial of summons case as a specified in Chapter XX of code is to be
adopted. This case is also tried as per the procedure prescribed for the
trial of summons case vide Chapter XX of Cr.P.C.
17] I have carefully gone through the provisions of Chapter XX
and Section 255 of the Code of Criminal Procedure. Unlike warrant
trial procedure, it is nowhere expressed under Chapter XX that accused
must be heard on the point of sentence before pronouncing it. Hence as
a mandate, it can't be invoked in summons cases. In fact in present
case, inspite of any speaking provisions, accused was given chance to
appear and submit on the point of sentence, but it was accused who
waved off his chance to open mouth on the point of sentence.
Therefore, this court proceeds further in the absence of accused.
18] On point of sentence Ld. Advocate for complainant has
submitted that maximum sentence of imprisonment and fine amount be
imposed on accused. He also prayed for compensation.
19] Admittedly, In this matter, accused has not denied acceptance of
amount from the complainant. In his statement recorded u/s. 313 of
Cr.P.C., he has admitted issuance of cheque and acceptance of an
amount of Rs. 2,11,000/ from the complainant. Considering nature of
offence, conduct of the accused, the period from which matter is
pending, in my opinion following order will meet the ends of justice:
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ORDER
i. The accused No. 1 Vijay Sitaram Shelar proprietor of accused
No. 2 M/s. Shree Samarth Enterprises 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 No. 1 is sentenced to suffer simple imprisonment for
period of Six months and he shall pay compensation of Rs. 3,50,000/
(Rs. Three Lacs Fifty Thousand) to the complainant vide Section 357(3)
of the Code of Criminal Procedure, in default of payment of
compensation, accused shall suffer further simple imprisonment for the
period of one month.
iii. The amount of compensation realized from the accused No. 1,
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. Today i.e. on the date of judgment accused remained absent,
hence issue standing Nonbailable warrant against the accused for his
arrest through concerned police station for execution of sentence in
view of Section 418 (2) of Cr.P.C.
vii. The copy of this Judgment shall be send to the convicted accused,
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free of cost, immediately after it is prepared, in view of section 363(1)
of the Code of Criminal Procedure, 1973.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 08/09/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 08/09/2023
Typed On : 08/09/2023
Signed On : 08/09/2023
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