Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 597/SS/2018
Filed on : 02/02/2018
Registered on : 02/02/2018
Decided on : 11/05/2022
Duration : 04Y. 03M. 09D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 597/SS/2018
CNR: : MHMM190012782018
Exh. No. 32
Mr. Firoz Ismail Khan, Indian Adult,
Flat No. 1404, Star Residency CHS Pvt.Ltd.
Plot no. 186/C, Station Road,
Jogeshwari (W), Mumbai. 400102 ...Complainant
Versus
Mr. Kanji Mana Bhandwa.
Prop. Of S.K. Group
28/B, 17 Omkar Society,
S.V.P. Nagar, MHADA, near
Telephone Exchange,
Andheri (W), Mumbai 400053 ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Shri. Advocate Atul Joshi for the complainant
Shri. Advocate Manjit Singh Jolly for the accused
-- 1 of 20 --
2 C. C. No. 597/SS/2018
JUDGMENT	JUDGMENT
(Delivered on 11/05/2022)
Accused stands prosecuted for the offence punishable
under section 138 of the Negotiable Instruments Act. (Hereinafter it is
referred as 'N.I.Act' in short.)
Case of the complainant in nutshell is as under :
2] It is the case of complainant that he is a civil work contractor and
involved in painting and civil works, while accused is proprietor of S. K.
Group, which is a firm engaged in the business of construction of
buildings. Accused were in need of manpower for painting plaster and
for other works for their various projects. Accused approached to
complainant with request to provide services for painting and plaster
works in his projects i.e. the construction of buildings going on at
various places in Mumbai. As per requirement of accused, complainant
provided workers for the period of near about one year. An amount of
Rs. 7,00,000/ was outstanding against the accused, against the labours
supplied by the complainant. It is further case of complainant that, in
order to pay this amount accused issue two post dated cheques each for
Rs. 3,50,000/ i.e. cheque bearing no. 000019, dt. 14112017 and
another cheque bearing no. 000020, for same amount drawn on Kotak
Mahindra Bank. Out of these two cheques, as per instruction of
accused , complainant presented cheque bearing no. 000019 for an
amount of Rs.3,50,000/ dt. 14112017 with his banker, YES Bank,
Jogeshwari (West) branch, for clearance. However, said cheque
returned unpaid with bank memo, “FUNDS INSUFFICIENT”. Thereafter,
Complainant made contact with accused and informed him about
dishonor of cheque but, accused instructed complainant to present said
-- 2 of 20 --
3 C. C. No. 597/SS/2018
cheque for clearance once again. As per request of accused, complainant
presented said cheque for clearance on 24112017, but again it
returned unpaid vide memo dt. 27112017 for reason “FUNDS
INSUFFICIENT” in the account of drawer.
3] Thereafter, complainant issued demand notice to the accused
through his advocate within 30 days from the date of dishonour of
cheque i.e. on 20/12/2017, calling upon accused to pay the cheque
amount within 15 days from the date of service of notice on him.
Notice was served upon accused on 21/12/2017. However, accused did
not pay amount to the complainant within a stipulated period.
Therefore, complainant filed this case on 08/02/2018 i.e. within 30
days from the date of cause of action arose for filing complaint.
4] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused was summoned. Post issuance of process,
presence of accused was secured before the court and he was submitted
to bail. Substance of accusation was read over to accused, to which he
pleaded not guilty and opt for trial. Considering nature of offence, this
case is a tried as a summons trial case.
5] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 12, as per
section 145 of the Negotiable Instrument Act. He also got examined
Bank witness Mr. Sikandar Khan (C.W.2) at Exh. 25. Besides oral
evidence, complainant has relied upon following documentary evidence
that includes:
-- 3 of 20 --
4 C. C. No. 597/SS/2018
Sr. No. Description of documents Exh. No.
1. Original Cheque Exh. 15
2. Cheque returned memo Exh. 16
3. Office copy of notice Exh. 17
4. Postal receipt Exh. 18
5. Acknowledgement Exh. 19
6] Complainant closed his evidence by filing pursis at Exh. 28. After
closer of complainant's evidence, statement of accused vide section 313
of Cr.P.C. was recorded vide Exh. 29, wherein accused has taken
defence of falsely implication. Accused neither examined himself nor
any witness in support of his defence which consist of total denial.
7] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed by complainant at Exh. 30 and written notes of
argument filed by Ld. Advocate for accused at Exh. 31. In view of
accusation and argument of both parties following points arise for my
determination and I have recorded my findings thereon as follows:
Sr.
No.
Points Findings
1. Does complainant prove that disputed
cheque was issued by the accused, in favour
of complainant for discharging legal
enforceable liability?
…. In the
Affirmative
2. Does complainant prove that cheque was
returned unpaid for reason “Funds
Insufficient” in the account of drawer?
….
In the
affirmative
-- 4 of 20 --
5 C. C. No. 597/SS/2018
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
…. In the
affirmative
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
…. Accused is
convicted
REASONS
Admitted/undisputed fact
8] Before going further it is necessary to mention
admitted/undisputed facts of this case.
i) It is not disputed by the accused that disputed cheque
is drawn from his account maintained with
Kotak Mahindra bank.
ii) Signature of the accused on the cheques is not disputed
by the accused.
AS TO POINT NO. 1
9] 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
-- 5 of 20 --
6 C. C. No. 597/SS/2018
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.
10] 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
-- 6 of 20 --
7 C. C. No. 597/SS/2018
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
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
-- 7 of 20 --
8 C. C. No. 597/SS/2018
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.
11] 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
-- 8 of 20 --
9 C. C. No. 597/SS/2018
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.
12] In order to discharge initial burden, complainant got examined
himself by filing his affidavit at Exh. 12, wherein he has reiterated his
case from complaint. His evidence shows that he had supplied labour
to accused for his various construction projects for the period of near
about 1 year. His evidence further shows that outstanding amount
against the accused was Rs. 7,00,000/ and for payment of this amount
accused had issued 2 cheques in his favor i.e. each for Rs. 3,50,000/.
Out of these 2 cheques, present case is filed for 1 cheque for an amount
of Rs. 3,50,000/ and in respect of another cheque different case is
filed.
13] Ld. Advocate for accused took crossexamination of complainant
at considerable length. It appears that through crossexamination, he
has taken defence that complainant and his brother was having a piece
of land admeasuring area 500 mts. At Kandivali. Said area comes under
the SRA Scheme. For future transaction in SRA Scheme, which never
took place, disputed cheques were issued by the accused and by
misusing said cheque present complaint is filed by the complainant.
14] Accused has denied having supplied labour for his project by the
-- 9 of 20 --
10 C. C. No. 597/SS/2018
complainant, he also denied having outstanding amount of Rs.
7,00,000/ against the supply of labor by the complainant. It is
necessary to note here that except denial, he did not bring any material
on record to show that why disputed cheque was issued by him in favor
of complainant. It is true that, complainant has also not filed any
documentary evidence on record to show that, he had supplied labour
to the accused for his various projects for the period of one year and
against that there was outstanding amount of Rs. 7,00,000/ payable by
accused to him. However, it is necessary to note that for supplying labor
on regular basis generally there is no practice of making the contract or
written agreement. According to complainant he was supplying labours
to accused for his various projects for the period of more than 1 year
and at the end after calculation it found that there was outstanding
amount against accused was Rs. 7,00,000/. In order to pay this
amount disputed cheque for an amount of Rs. 3,50,000/ was issued by
the accused.
15] As discussed earlier, accused has not denied issuance of cheque as
well as his signature on cheque. Complainant has come before the Court
with probable case that, he had supplied labour to accused and for the
payment of outstanding amount disputed cheque was issued by the
accused. It is not the requirement of law that, there must be written
argument for supplying the labour. Oral evidence adduced by
complainant is sufficient to raise the presumption U/sec. 139 of N. I.
Act, in favor of complainant and against the accused. Therefore, it is for
the accused to show that disputed cheque was not issued by him for
discharging legal enforceable liability. In support of his argument,
complainant has relied upon judgment passed by Hon'ble Supreme
-- 10 of 20 --
11 C. C. No. 597/SS/2018
Court in the case of Rohit Bhai Patel V/s. State of Gujarat, decided in
Cri. Appeal No. 508/2019, dt. 06022019, wherein Hon'ble Supreme
Court after discussing provisions of N. I. Act and referring various
judgment of Hon'ble Supreme Court has observed as under :
16. On the aspects relating to preponderance of probabilities, the
accused has to bring on record such facts and such circumstances
which may lead the Court to conclude either that the consideration
did not exist or that its non existence was so probable that a prudent
man would, under the circumstances of the case, act upon the plea
that the consideration did not exist. This Court has, time and again,
emphasized that though there may not be sufficient negative
evidence which could be brought on record by the accused to
discharge his burden, yet mere denial would not fulfill the
requirements of rebuttal as envisaged under Section 118 and 139
of the NI Act. This court stated the principles in the case of Kumar
Exports (supra) as follows:
"20. 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 nonexistence 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 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
-- 11 of 20 --
12 C. C. No. 597/SS/2018
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.
21. 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, therefore, the presumptions under
Sections 118 and 139 of the Act will not again come to the
complainant's rescue."
20. On perusing the order of the Trial Court, it is noticed that the Trial
Court proceeded to pass the order of acquittal on the mere ground of
'creation of doubt'. We are of the considered view that the Trial Court
appears to have proceeded on a misplaced assumption that by mere
denial or mere creation of doubt, the appellant had successfully
rebutted the presumption as envisaged by Section 139 of the NI Act. In
the scheme of the NI Act, mere creation of doubt is not sufficient.
21. The result of discussion in the foregoing paragraphs is that the major
considerations on which the Trial Court chose to proceed clearly show its
fundamental error of approach where, even after drawing the
presumption, it had proceeded as if the complainant was to prove his
case beyond reasonable doubt. Such being the fundamental flaw on the
part of the Trial Court, the High Court cannot be said to have acted
illegally or having exceeded its jurisdiction in reversing the judgment of
acquittal. As noticed hereinabove, in the present matter, the High Court
has conscientiously and carefully taken into consideration the views of
the Trial Court and after examining the evidence on record as a whole,
found that the findings of the Trial Court are vitiated by perversity.
Hence, interference by the High Court was inevitable; rather had to be
made for just and proper decision of the matter.
22. For what has been discussed hereinabove, the findings of the High
Court convicting the accusedappellant for offence under Section 138 of
the NI Act deserves to be, and are, confirmed.
16] He further relied on judgment passed by Hon'ble Supreme Court
-- 12 of 20 --
13 C. C. No. 597/SS/2018
in the case of Bir Singh V/s. Mukesh Kumar, decided in Cri. Appeal
No. 230231 of 2019 , wherein, Hon'ble Supreme Court has observed as
under :
36. The proposition of law which emerges from the
judgments referred to above is that the onus to rebut the
presumption under Section 139 that the cheque has been
issued in discharge of a debt or liability is on the accused
and the fact that the cheque might be post dated does not
absolve the drawer of a cheque of the penal consequences
of Section 138 of the Negotiable Instruments Act.
17] From perusal of guidelines and observation from aforesaid two
authorities, it becomes clear that, if complainant has discharged initial
burden and brought sufficient material on record to raise presumption
U/sec. 139 of N. I. Act, then it is for the accused to rebut the said
presumption by adducing probable defence and evidence to that effect.
In the case at hand accused has taken defence that disputed cheque was
issued by him in favour of complainant for future transaction of SRA,
which never took place. In th light of evidence available on record and
facts of this case, I have to see whether said defence raised by the
accused, which is not supported by any evidence, is probable defence.
18] Accused is engaged in the business of construction. He knows
very well about the business transactions, SRA Schemes, etc. He did not
bring any evidence on record to show that, complainant or his brother
was having any plot, which comes under SRA scheme. Except, bear
words of accused, there is nothing to show that, complainant was
having such plot and against the future transaction of such plot,
disputed cheque was issued by the accused. If really accused wanted to
enter into transaction with the complainant in relation to his plot and
he wanted to issue cheque against said transaction, he must have
executed it in writing. As discussed earlier there is absolutely no
-- 13 of 20 --
14 C. C. No. 597/SS/2018
evidence to show existence of plot of the complainant or any evidence
about the future SRA scheme in relation to said plot. Thus, suggestion
given on part of accused to that effect are appears to be very vague in
nature and same are not at all supported by oral or documentary
evidence.
19] In such circumstances, it becomes clear that disputed cheque was
issued by the accused for discharging legal enforceable liability i.e. for
payment of labour charges to the complainant. Evidence adduced by
complainant is sufficient to raise the presumption U/sec. 139 of N. I. Act
in favor of complainant. Accused has failed to rebut said presumption.
In result Point no. 1 is answered in affirmative.
AS TO POINT NO. 2 TO 5
20] In order to prove that cheque was returned unpaid for reason
“Funds Insufficient”, complainant has relied upon his oral evidence in
addition to documentary evidence i.e. cheque return memos filed at
Exh. 16 issued by the concerned bank, which shows that cheque was
returned unpaid for reason “Funds Insufficient”. Said memo doesn't
bears seal of the bank but there is a signature of bank officer. As per
section 146 of N.I. Act, court shall in respect of every proceeding under
this chapter, on production of bank slip or memo having thereon official
mark denoting that cheque has been dishonored, presume the fact of
dishonor of such cheque, unless and until such fact is disproved.
21] In the case at hand cheque returned memo doesn't bear seal of
the bank, however Complainant got examined bank witness namely
Sikandar Khan (C. W. No. 2) at Exh. No. 25 to prove that cheque was
dishonored for reason “FUNDS INSUFFICIENT” in the account of
-- 14 of 20 --
15 C. C. No. 597/SS/2018
drawer. Evidence of Mr. Khan (C.W. No. 2) clearly shows that disputed
cheque was dishonore for reason “FUNDS INSUFFICIENT” in the
account of accused. He has filed on record account statement of
complainant at Exh. No. 27 to that effect. Besides that, accused has not
denied fact of dishonored of cheque. It is the defence of accused that,
cheque was deposited without giving intimation to him, but it is not his
case that cheques was not presented for clearance and same was not
dishonored. Therefore, it becomes clear that disputed cheques was
dishonored for a reason “Funds Insufficient” in the account of accused
as mentioned in memo.
22] In order to show that statutory demand notice was issued to
accused within statutory period, complainant has filed on record office
copy of notice at Exh. 17, along with postal receipt at Exh. 18, and
postal acknowledgement card at Exh. 19 which clearly shows that
notice was duly served upon accused. Accused has not denied service of
notice on him. It appears that formal suggestion was given that he has
not received legal notice. However, it is not the case of accused that,
address shown in demand notice is not his correct address. Therefore,
as per section 114 illustration (f) of Indian Evidence Act, and as per
Section 27 of General clauses Act, when notice is sent by registered post
on correct address, then it is to be presumed that it is a duly served
unless contrary is proved. In the case hand, complainant has produced
on record A.D. card as well as postal receipts, which shows that notice
was duly served upon accused. Thus, all the circumstances shows that
statutory demand notice was duly served upon accused but he failed to
pay cheque amount to the complainant.
23] In this regard judgment passed by Hon'ble Supreme Court in the
-- 15 of 20 --
16 C. C. No. 597/SS/2018
case of C.C. Alavi Haji V/s. Palapetty Muhammed decided in
criminal appeal no. 767/2007 dated 18/05/2007 is relevant,
wherein in para No. 17 of the judgment Hon'ble Supreme Court has
observed as under :
“It is also to be borne in mind that the requirement of giving of 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,
withing 15 days of receipt of summons from the court in respect of
the complaint under Section 138 of the Act, make 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 Bhaskaran 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. ”
From the above observation it becomes clear that a person who does
not pay cheque amount within 15 days of receipt of summons from the
court, he cannot take defence that there was no proper service of
demand notice, when notice was sent by registered post on his correct
address. Admittedly in the case at hand accused has not offered or paid
cheque amount to complainant within 15 days from the date of service
of summons from the court on him. Therefore, this defence of non
service of summons is not available to him. Besides that in this case
complainant has duly proved service of notice on the accused, but
accused has failed to pay cheque amount to the complainant within 15
days from the date of service of statutory notice. Thus, evidence on
record clearly shows that cheque was dishonoured for reason “Funds
Insufficient” in the account of accused. Record further shows that
-- 16 of 20 --
17 C. C. No. 597/SS/2018
demand notice was sent by the complainant within a statutory period as
well as complaint is filed within limitation. In result point nos. 2 to 5
are answered in the affirmative.
AS TO POINT NO.6
24] 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. The offence P/u/s. 138 of the
Negotiable Instruments Act, is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
probation to him 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 : 11/05/2022 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
25] 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 his stand on the nature and quantum of the sentence, if any.
26] Upon asking on the point of sentence, the accused
submitted that, minimum sentence may be imposed upon him. Ld. Adv.
for accused has submitted that minimum sentence may be imposed. On
the other hand, Ld. Adv. For complainant has submitted that, cheque
-- 17 of 20 --
18 C. C. No. 597/SS/2018
was issued against the remuneration of labour charges and therefore he
prayed to impose fine amount to the extent of double of the cheque
amount and also prayed for imprisonment.
27] Heard both sides and gone through record. In this matter,
disputed cheque was issued in the year 2018. Almost 4 years have been
completed from issuance of cheque. Having heard both parties, on the
point of sentence, considering purpose of legislature, behind this
enactment, I am of the view that granting the compensation alongwith
sentence of imprisonment will serve the ends of justice. In result I pass
following order:
ORDER
i. The accused Kanji Mana Bhandwa is hereby convicted for the
offence punishable under section 138 of the Negotiable Instrument Act,
1881 vide section 255(2) of the Code of Criminal Procedure, 1973.
ii. Accused is sentenced to suffer simple imprisonment for the period
of Three months and he shall pay compensation of Rs. 5,00,000/ (Rs.
Five Lacs) to the complainant vide Section 357(3) of the Code of
Criminal Procedure. Accused shall pay above amount of compensation
within two months from today, in default of payment of compensation,
accused shall suffer simple imprisonment for the period of 15 days.
iii. The amount of compensation realized from the accused, shall be
paid to the complainant, subject to expiry of the appeal period or the
orders of Honourable Appellate Court (if any).
iv. Accused to surrender his bail bond.
-- 18 of 20 --
19 C. C. No. 597/SS/2018
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.
vii. The copy of this Judgment be provided free of cost to the
accused, immediately after it is prepared, in view of section 363(1) of
the Code of Criminal Procedure, 1973.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 11/05/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 11/05/2022
Typed On : 11/05/2022
Signed On : 11/05/2022
-- 19 of 20 --
20 C. C. No. 597/SS/2018
-- 20 of 20 --