Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 212/SS/2019
Filed on : 18/01/2019
Registered on : 18/01/2019
Decided on : 03/05/2023
Duration : 04Y. 03M. 15D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 212/SS/2019
CNR: MHMM190009562019
Exh. No.
M/s. BEST Petroleum.
(A Division of Roadways Ltd.)
A Company Incorporated under the Companies Act
1956, having its Corporate office at
C505, Pramukh Plaza, 5 th Floor,
Andheri (E), Mumbai 400 099
Through Authorized representative
Ketan Sambhuprasad Desai,
age about 59 years. …Complainant
Versus
1. Rahul Bulk Carrier.
B109, Shatrughan Commercial Center
Sector 18, Vashi, Navi Mumbai – 400 703.
2. Mr. Amarnath Bhatia.
Proprietor/ in charge of Rahul Bulk Carrier,
B109, Shatrughan Commercial Center
Sector 18, Vashi, Navi Mumbai – 400 703.
3. Mr. Rahul Amarnath Bhatia.
Proprietor/ in charge of Rahul Bulk Carrier,
B109, Shatrughan Commercial Center
Sector 18, Vashi, Navi Mumbai – 400 703 ...Accused
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Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Riddhi Gada for the complainant
Advocate Mrs. Tanuja Patil for accused.
JUDGMENT	JUDGMENT
(Delivered on 03/05/2023)
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] It is the case of complainant that, complainant company is
reputed transporter provides logistic and transport services to its
customer and also doing business of sales and supply of petroleum
products. Accused no. 1 is the proprietary firm and accused no. 2 and 3
are its proprietor, incharge and principal agent of accused no. 1.
Accused had approached to the complainant with request to supply
diesel on credit basis for their trucks which were running on national
permit throughout India. Accordingly, complainant sold out and
supplied diesel to the accused. In order to discharge their legal
liabilities towards the supply of diesel by the complainant, accused
issued following cheques for total amount of Rs. 2,89,919/ drawn from
account of accused no. 1 maintained with Narayana Guru Co.Op. Bank,
branch KoparKharane, NaviMumbai.
Sr. No. Cheque No. Date Cheque
amount
1. 009090 01/12/2018 78,483/
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2. 009091 01/12/2018 1,04,448/
3. 009092 01/12/2018 1,06988/
3] As per instruction of accused, complainant presented these
cheques for clearance with its banker namely HDFC Bank, however vide
bank memo dated 04/12/2018, said cheques were returned unpaid for
reason “Exceed arrangement”.
4] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 14/12/2018, calling upon him to pay the
cheque amount, within stipulated time. Notice was duly served upon
accused on 15/12/2018. Inspite of service of notice, accused did not
pay cheque 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 18/01/2019.
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 its
representative namely Ketan Desai (C.W. 1) by filing his affidavit in lieu
of examinationinchief at Exh. 13, vide section 145 of the Negotiable
Instrument Act. Besides oral evidence, complainant has relied upon
following documentary evidence that includes:
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Description of documents Exh. No.
29 bills of different dates Exh. 19 to 47
Notice dated 19/05/2018 Exh. 48
Postal receipt Exh. 49
A. D. Card Exh. 50
Three original cheques Exh. 51 to 53
3 cheque returned memos Exh. 54 to 56
Office coyp of notice Exh. 57
3 acknowledgement card Exh. 58 to 60
Reply from accused Exh. 61
Certificate U/s. 65 (B) of Evidence Act Exh. 62
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 72 and 73, wherein
accused have taken defence of falsely implication. Accused in support
of his defence examined accused no. 2 Amarnath Bhatia (D.W. 1) at
Exh. 74 and accused no. 3 Rahul Bhatia (D.W. 2) at Exh. 83.
8] Complainant has filed their written notes of argument at Exh. 91,
while Ld. Advocate for accused has filed their written notes of argument
at Exh. 93.
9] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of both parties. In view of accusation
and argument of both parties, following points arise for my
determination and I have recorded my findings thereon as follows:
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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 “Exceed
arrangement”?
…. In the
affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding
cheques 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 No.
1 and 2 are
convicted
while
accused no. 3
is acquitted.
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REASONS
Admitted/undisputed fact
10] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheques are drawn from the
account of accused no.1 and it bears signature of
accused no. 2. According to accused, accused no. 2 is
the proprietor of accused no. 1 but accused no. 3 is not at all
concerned with the accused no. 1.
AS TO POINT NO. 1
11] The accused are 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
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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.
12] 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
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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.
13] 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
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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.
14] In order to prove its case, complainant examined its
representative Mr. Ketan Desai (C.W.1) by filing his affidavit of
examinationinchief at Exh. 14, by which he has reiterated his case
from the complaint. His evidence shows that, complainant company had
supplied diesel for the trucks of the accused and in order to pay amount
of that diesel disputed cheques were issued by the accused. In support
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of his contention, complainant has produced on record various invoices
at Exh. 19 to 47. Complainant has also produced on record letter dated
19/05/2018 sent by them to the accused demanding outstanding
payment of Rs. 11,02,459/ from the accused.
15] Ld. Advocate for accused conducted crossexamination of Mr.
Desai at length. In crossexamination he admitted that, there is no
acknowledgement on the part of accused about receipt of these invoices
filed on record. However, it has come on record that vide letter dated
19/05/2018 complainant had communicated to the accused that there
is an outstanding amount of Rs. 11,02,459/ against the accused.
Complainant has also produced on record email dated 24/04/2018
through which, complainant had demanded an amount of Rs.
4,76,125/ from the accused. In this email, it is mentioned that “Dear
Rahul Sir, pl. see the outstanding of your company M/s. Rahul Bulk
Carriers as per our ledger, please clear this outstanding”. And below
that through different 14 entries and through different 14 bills for the
period of 05/12/2016 to 22/03/2017 an amount of Rs. 4,76,125/ is
shows as a outstanding against the accused. According to complainant,
said amount was not the total outstanding amount.
16] Ld. Advocate for accused has taken a defence that, disputed
cheques were given by the accused in favour of complainant by way of
security purpose and those cheques were presented by the complainant
for clearance without giving any intimation to the accused. It has
further come on record that accused has sent reply to demand notice,
wherein he has admitted his liability to pay an amount of Rs. 3,64,560/
only. It has also come on record that, after filing of this complaint,
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accused has paid some amount to the complainant. Complainant has
admitted that accused has made payment to him during pendency of
that matter. However, according to him, said amount was not paid
against the disputed cheque or bills raised in this case. Accused has filed
his ledger account maintained by them in respect of transaction with
complainant for the period 01/04/2015 to 31/03/2020 and as per said
ledger outstanding amount against the accused was Rs. 2,80,670/.
17] Before going further, it is necessary to note here that, accused no.
1 is a proprietorship firm and accused no. 2 is its proprietor.
Complainant did not produce any evidence on record to show that,
accused no. 3 is the proprietor of accused no. 1. In reply notice also,
accused have specifically stated that, accused no. 2 is the proprietor of
accused no. 1 and accused no. 3 is not at all concerned with the accused
no. 1. Hence, accused no. 3 Mr. Rahul Bhatia cannot be held guilty for
dishonoured of cheque drawn from the account of accused no. 1.
18] It is necessary to note here that, complainant has filed in all 3
different complaints against the accused for total cheque amount of Rs.
11,02,457/. As discussed earlier, according to complainant vide letter
dated 19/05/2018, they had demanded said amount by issuing letter to
the accused by RPAD. However, accused has also produced on record
email dated 24/04/2018 sent by complainant to the accused, wherein
complainant has demanded an amount of Rs. 4,76,125/ from the
accused by stating outstanding amount. According to complainant, it
was not the total outstanding amount, however complainant did not
produce its ledger account maintained by him to show that an amount
of Rs. 11,02,457/ was outstanding against the accused. As discussed
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earlier accused has admitted his liability to pay an amount of Rs.
3,64,560/ and according to accused, thereafter he has made payment
of Rs. 1,20,000/ to the complainant and hence now he is liable to pay
an amount of Rs. 2,80,670/ only. In this matter, cheque amount is Rs.
2,89,919/ only and accused vide his reply dated 19/12/2018 has
admitted his liability to the extent of Rs. 3,64,560/. However,
admittedly accused did not pay said amount to the complainant within
15 days from the date of service of notice. So far as total outstanding
amount is concerned, complainant did not produce account statement
of accused stating t hat, same is destroyed due the rain. There is
nothing t o show that, how much amount was outstanding against the
accused. Except oral evidence of complainant, there is nothing to show
that an amount of Rs. 11,02,457/ outstanding against the accused.
However, as admitted by the accused an amount of Rs. 3,64,560/ was
outstanding against him and certainly it is the excess than cheque
amount. Therefore, it becomes clear that disputed cheque from this
case were issued by the accused for discharging legally enforceable
liability. In result point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
19] Cheques are dishonoured vide memo dated 04/12/2018.
Demand notice was sent on 14/12/2018. Accused has sent reply on
19/12/2018 and this complaint was filed 18/01/2019. Complainant
has produced on record cheque returned memos that bears seal of the
bank. So, as per presumption u/s. 146 of N.I. Act, it is to be presumed
that cheques were dishonoured for the reasons mentioned in memo i.e.
“Exceeds Arrangement”. Hence, it remains proved that cheques were
dishonoured for the reason “Exceeds Arrangement”. As discussed
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earlier, notice was sent within limitation and it was duly served upon
accused. Admittedly, accused did not comply with the notice within a
statutory period given by law. It is matter of record that, complainant
has filed this complaint within period of limitation. In result, point no.
2 to 5 are answered in the affirmative.
AS TO POINT NO.6
20] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved its claim with
cogent evidence against the accused No. 1 and 2 only. Accused no. 3
Rahul Bhatia is not the proprietor of accused no. 1 from whose account
disputed cheques were issued. Hence, accused no. 3 cannot be held
guilty for dishonoured of disputed cheques. The offence P/u/s. 138 of
the Negotiable Instruments Act is established against the accused No. 1
and 2 only. 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 no. 2 Amarnath Bhatia is
called upon to state on the point of sentence.
(K. G. Sawant)
Date : 03/05/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
21] 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.
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22] Upon asking on the point of sentence, accused kept silence while
Ld. Advocate for accused submitted that accused is senior citizen and
hence prayed to impose minimum punishment and prayed for leniency.
On the other hand, Ld. Advocate for complainant has submitted that,
accused has intentionally dishonoured the disputed cheques. Hence, he
prayed to impose a maximum punishment as per law. According to
him, complainant is a public limited company and hence amount
involved in this matter is a public money.
23] heard both parties and their Ld. Advocates at length on the point
of sentence. It appears that, economic condition of accused was sound
enough to pay the cheque amount. Though accused admitted his
liability but did not comply with the notice. Considering nature of
offence, purpose of legislature behind enactment of Section 138 of N.I.
Act, and various guidelines issued by the Hon'ble Supreme Court on the
point of sentence from time to time, suitable and appropriate
compensation alongwith imprisonment would be sufficient to meet the
ends of justice. In result, I proceed to pass following order :
ORDER
i. The accused No. 2 Mr. Amarnath Bhatia Proprietor of accused
No. 1 Rahul Bulk Carrier 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. The accused no. 3. Mr. Rahul Amarnath Bhatia is hereby
acquitted for the offence punishable U/s. 138 of N.I. Act vide Section
255 (1) of Code of Criminal Procedure, 1973.
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ii. Accused No. 2 is hereby sentenced to suffer simple imprisonment
for period of Six months and to pay compensation of Rs. 5,00,000/ (Rs.
Five Lacs Only) to the complainant, vide Section 357(3) of the Code of
Criminal Procedure along with 9% Simple interest on the said amount
from the date of issuance of cheque till actual payment. 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.
iv. The amount of compensation realized from the accused No. 2,
shall be paid to the complainant, subject to expiry of the appeal period
or the orders of Honourable Appellate Court (if any).
v. Accused No. 2 to surrender his bail bonds and bail bond of
accused no. 3 stands canceled.
vi. No question of setoff under section 428 of the Code of Criminal
Procedure, 1973, as the accused No. 1 has not spent any period in the
custody during the trial.
vii. The copy of this Judgment be provided free of cost to the accused
No. 2, immediately after it is prepared, in view of section 363(1) of the
Code of Criminal Procedure, 1973.
viii. Accused No. 2 is informed about having his right to prefer appeal
against this judgment within a statutory period before Hon'ble Sessions
Court.
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ix. Accused No. 3, shall execute P.R. Bond of Rs. 15,000/, to
appear before the Higher Court as and when such court issues notice in
respect of any appeal or petition filed against this judgment, vide
section 437 (A) of the Code of Criminal Procedure. Said bail bonds
shall be in force for Six Months.
x. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 03/05/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 03/05/2023
Typed On : 03/05/2023
Signed On : 03/05/2023
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