Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 213/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. 213/SS/2019
CNR: MHMM190009572019
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. 3,75,987/ 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. 009093 01/12/2018 1,09,913/
2. 009094 01/12/2018 1,36,098/
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3. 009095 01/12/2018 1,29,976/
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,
that 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:
Description of documents Exh. No.
29 bills of different dates Exh. 18 to 46
Notice dated 19/05/2018 Exh. 47
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Postal receipt Exh. 48
A. D. Card Exh. 49
Three original cheques Exh. 50 to 52
3 cheque returned memos Exh. 53 to 55
Office copy of notice Exh. 56
3 acknowledgement card Exh. 57 to 59
Reply from accused Exh. 60
Certificate U/s. 65 (B) of Evidence Act Exh. 61
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 71 and 72, 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] Both parties have filed common written notes of arguments for all
three matters filed by the complainant against the accused and those
common notes are filed in C.C. No. 212/SS/2019.
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:
Sr.
No.
Points Findings
1. Does complainant prove that disputed
cheques were issued by the accused, in
…. In the
Negative
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favour of complainant for discharging legal
enforceable liability?
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 are
acquitted.
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.
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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
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
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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;
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
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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
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
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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. 13, wherein 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
of his contention, complainant has produced on record various invoices
at Exh. 18 to 46. 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.
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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,
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,
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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
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 C.C. No. 212/SS/2019 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. Hence,
accused is already convicted in C.C. No. 212/SS/2019.
19] So far as total outstanding amount is concerned, complainant did
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not produce account statement of accused maintained by them. It is
stated by complainant that, account statement has destroyed due the
rain. There is nothing to 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/ was
outstanding against the accused. Accused has produced his ledger
account maintained by him in respect of transaction with complainant
which shows that, an amount of Rs. 3,65,000/ was outstanding against
the accused. Already in respect of said amount, he is convicted in C.C.
No. 212/SS/2019, however there is no sufficient evidence to show that,
cheque amount from this case or total amount of Rs. 11,02,457/ was
outstanding against the accused. Complainant has failed to prove that,
disputed cheques were issued by the accused for discharging legally
enforceable liability. Accused have rebutted presumption u/s. 139 of
N.I. Act. In result point no. 1 is answered in the Negative.
AS TO POINT NO. 2 TO 5
20] 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
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.
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2 to 5 are answered in the affirmative.
AS TO POINT NO.6
21] Taking into consideration answer of points Nos. 1 it becomes
clear that, disputed cheques were not issued by the accused for
discharging legally enforceable liability and hence accused are entitled
for acquittal. In result, I pass following order:
ORDER
1] Accused No. 2. Mr. Amarnath Bhatia proprietor of accused
no. 1. Rahul Bulk Carrier and accused No. 3 Mr. Rahul Amarnath
Bhatia are hereby acquitted vide Section 255(1) of Criminal
Procedure code for an offence punishable under Section 138 of
the Negotiable Instruments Act.
2] Bail bond of accused stands cancelled.
3] Accused shall execute P.R. Bond of Rs. 15,000/ each, 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.
(Judgment is 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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