Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.594/SS/2018
Filed on : 02/02/2018
Registered on : 02/02/2018
Decided on : 18/02/2023
Duration : 05Y.00M.16D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 594/SS/2018
CNR: MHMM190012892018
Exh. No.
Mr. Satyanarayan Babulalji Trivedi.
Aged : 53 years, Occu : Priest
An Adult, Indian Inhabitant residing at
203, Parvati Sadan C.H.S.
Ltd., Navghar Road, Bhayander (E),
Thane – 401101, Maharashtra ...Complainant
Versus
Mr. Yogesh Kantilal Tadgamwala.
Age about 42 years, Occu : Business
An Adult, Indian Inhabitant residing at
C209, Second Floor, Swagat Theresa
Apartment, B Building, Lepora
Street, 60 Feet Road, Bhayander (West)
Thane – 401 101
And also residing at A301, Third Floor,
A wing, Theresa Apartment, A Building,
Lepora Street, 60 Feet Road, Bhayander (W),
Thane – 401 101. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
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Advocate Shri. Ashish Gupta holding for Adv. Sunil Dubey for the
complainant
Advocate Shri. Subhash Upadhayay for accused.
JUDGMENT	JUDGMENT
(Delivered on 18/02/2023)
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, there were close relations
between him and accused. In the first week of April 2017 accused
approached to complainant with request to advance sum of Rs.
3,20,000/ as a friendly loan. Considering relation with accused,
complainant advanced an amount of Rs. 3,20,000/ to the accused, on
his assurance to repay it as early as possible within 6 months. It is
further case of complainant that, in order to repay this loan amount,
accused issued two cheques bearing 627505 dated 16/11/2017 for an
amount of Rs. 1,00,000/ and cheque bearing no. 749417 dated
02/12/2017 for an amount of Rs. 2,20,000/ drawn from account of
accused maintained with State Bank of India, Bhayender Branch and
NKGSB Co.Op. Bank, Bhayender branch respectively.
3] Complainant presented said cheques for encashment with his
banker namely State Bank of India, Jogeshwari (E) branch. However,
vide memo dated 06/12/2017 and 05/12/2017, both cheques returned
unpaid with remark “Funds Insufficient”.
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4] It is further case of complainant that, after dishonoure of
cheques, he issued statutory demand notice to accused on 01/01/2018,
calling upon accused to pay the cheque amount within stipulated time.
Notice was returned back with postal remark “Intimation Posted” on
02/01/2017 and “unclaimed returned to sender” on 08/01/2017.
According to complainant it was good service on the accused, however
accused failed to comply with the notice. 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 02/02/2018.
5] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which he
pleaded not guilty and opt for trial.
6] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 14 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.
2 Original Cheques Exh. 16 and 17
Cheque returned memos Exh. 18 and 31
Office copy of demand notice Exh. 19
Postal receipt Exh. 20
Sealed returned envelope Exh. 21
7] After completion of complainant's evidence, statement of accused
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u/s. 313 of Cr.P.C. was recorded at Exh. 27. Accused has taken a
defence of falsely implication. According to accused, he had borrowed
an amount of Rs. 1,00,000/ only from the complainant.
8] Complainant has filed his written notes of argument at Exh. 34
while accused has filed her written notes of argument at Exh. 35.
9] Heard Ld. Advocate for both parties at length and perused the
case record. In view of accusation and argument of complainant,
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
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
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5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
.. Accused is
convicted
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 and it bears his signature.
AS TO POINT NO. 1
11] 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.
 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
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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
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;
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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.
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
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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
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 his case, complainant examined himself by
filing his affidavit of examinationinchief at Exh. 14, wherein he has
reiterated his case from the complaint. His evidence shows that, He had
given loan of Rs. 3,20,000/ to the accused. Out of which an amount of
Rs. 1,00,000/ was given through cheque, while remaining Rs.
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2,20,000/ was given in cash. According to him, in order to repay this
amount, disputed cheques were issued by the accused.
15] Ld. Advocate for accused conducted crossexamination of
complainant at length. From perusal of crossexamination it appears
that, accused has denied acceptance of loan Rs. 3,20,000/ from the
complainant. According to accused, complainant wanted to purchase
land at village and for that he wanted to borrow money from someone
by showing cheque and therefore he obtained blank signed cheques
from the accused in order to arrange money from the market.
Complainant has admitted that contents of cheque are in his
handwriting. Accused has admitted his signature from the cheque. In
his statement recorded u/s. 313 of Cr.P.C. accused has specifically
admitted acceptance of Rs. 1,00,000/ through cheque from the
complainant, however he has denied acceptance of remaining amount
of Rs. 2,20,000/ in cash from the complainant.
16] Heard ld. Advocate for both parties and gone through the record.
Perused written notes of argument submitted by both parties on record.
Accused has admitted issuance of cheques and his signature on it. In
such circumstances, as per Section 139 of N.I. Act, it is to be presumed
that, disputed cheques are issued by the accused in favour of
complainant for discharging legal enforceable liability. Therefore,
burden is on the accused to show that said cheques were not issued for
any liability. In order to rebut said presumption accused neither
examined himself nor any witness. According to accused, complainant
wanted to purchase land at his village and therefore he had obtained
blank signed cheques from the accused in order to show it to the
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lenders in the market and to arrange amount based on these cheques.
Said suggestions given on the part of accused is denied by the
complainant. It is necessary to mention here that, above defence raised
on the part of accused is not appears to be probable and reliable. Said
defence is not supported by any evidence and hence same is not reliable
and acceptable. It is true that, complainant has not given any evidence
about the payment of Rs. 2,20,000/ made in cash to the accused.
However, on that ground case of complainant cannot be disbelieved.
Had the accused raised probable defence, burden would have been
shifted on the complainant to show that really he had advanced loan to
the accused. However, defence raised by the accused is not at all
probable, reliable and sufficient to shift the burden of proof on the
complainant. In short accused has failed to rebut the presumption u/s.
139 of N.I. Ac. In result point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
17] In order to prove that cheque was returned unpaid, complainant
has relied upon his own oral evidence in addition to documentary
evidence i.e. cheque return memos filed at Exh. 18 and 31. Said memo
bears seal of the bank. Therefore, as per Section 146 of N.I. Act, it is to
be presumed that said cheques were returned unpaid for the reason
mentioned in memo. As per cheque returned memos produced on
record it becomes clear that disputed cheques were returned unpaid for
the reason “Funds Insufficient”.
18] Cheques were dishonoured vide memo dated 05/12/2017 and
06/12/2017. Demand notice was sent on 01/01/2018 i.e. within one
month from the date of dishonoured of cheque. Record shows that
demand notice was sent on correct address of accused through
registered post. Accused has not claimed this notice. Intimation was
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given to accused. Therefore, it is to be presumed that notice was duly
served upon the accused. Complaint is filed on 02/02/2018.
Admittedly, accused has not paid cheque amount to the complainant
within 15 days from the date of receipt of notice or till today. It is a
matter of record that, complaint is filed within limitation. In result,
point nos. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
19] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved his 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 them 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 : 18/02/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
20] 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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21] Upon asking on the point of sentence, accused submitted that he
is ready to repay an amount of Rs. 1,00,000/ which he had borrowed
from the complainant through cheque. Ld. Advocate Ashish Gupta
holding for Adv. Sunil Dubey for complainant submitted that cheque
amount is Rs. 3,20,000/. he further submitted that accused may be
punished as per law and Maximum compensation be awarded to the
complainant.
22] heard both parties and their Ld. Advocates at length on the point
of sentence. Matter is pending since 2018. considering nature of
offence, period since which case is pending, readiness shown by the
accused to pay part payment, and considering purpose of legislature
behind enactment of Section 138 of N.I. Act, Suitable and appropriate
compensation alongwith penal action against the accused would suffice
the purpose and also meets the ends of justice. In result, I proceed to
pass following order :
ORDER
i. The accused Mr. Yogesh Kantilal Tadgamwala 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 hereby sentenced to suffer simple imprisonment for
period of Six months and to pay compensation of Rs. 3,50,000/ (Rs.
Three Lacs Fifty Thousand Only) 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 further simple
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imprisonment for the period of One month.
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 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. 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.
vii. Accused is informed about having his right to prefer appeal
against this judgment within a statutory period before Hon'ble Sessions
Court.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 18/02/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 18/02/2023
Typed On : 18/02/2023
Signed On : 18/02/2023
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