Final Order 1

Order Details: Copy  of Judgment
Pdf Text: (1) CC. No.460/SS/2018 [Judg.]
CNR No.MHMM19-001905-2018
Received on : 25 01 2018
Registered On : 14 02 2018
Decided on : 18 03 2025
Duration : Y M D
07 01 23
IN THE COURT OF
JUDICIAL MAGISTRATE, FIRST CLASS
[63RD COURT, ANDHERI, MUMBAI]
[PRESIDED OVER BY SHRI. R.D. DANGE]
C.C. No.460/SS/2018
Exh.45
M/s. Fab 90 Trading a proprietary concern
Through Power of Attorney Holder
Mr. Tarun Kamleshbhai Sagar
Having Office At G-105, Marwah Complex,
Off Saki-Vihar Road, Opp. Tata Power,
Andheri (E), Mumbai-72. ...Complainant
Versus
Mahesh Baldevbhai Patel
Having address at :
C/6, Mangaldeep Apartment,
Opp. Pruthvi Tower, Jodhpur,
Village Road, Satellite, Ahmadabad,
Gujarat-386 815. ...Accused
________________________________________________________
Advocate for Complainant : Shri. J. P. Verma
Advocate for Accused : Shri. R. K. Pandey
________________________________________________________
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(2) CC. No.460/SS/2018 [Judg.]
CNR No.MHMM19-001905-2018
J U D G M E N T
(Delivered on 18/03/2025)
Accused is facing trial for an offence punishable
under Section 138 of the Negotiable Instruments Act
(hereinafter referred to as the N.I. Act).
Complainant’s case in short is as follows:
2] Complainant is a proprietary concern and one
Shanta Sagar is proprietor of it. It is in business of real estate
(site acquisition) setting up for Bank & Company’s ATM sites in
suitable places in all over India on commission basis.
Complainant is authorized by Irrevocable Special Power of
Attorney to file, institute, sign, depose, withdraw case, verify
and pursue complaint, application, affidavit, plaints, pleadings,
applications, petitions or documents before the Court and to
deposit, withdraw and receive document and any money or
monies from accused or any other acts in respect to this present
matter.
3] Accused is owner of shop situated at Shop No.A5
Block, Sukirti Garden, ISRO Colony Road, Ramdev Nagar, Opp.
Amarakadamb Banglo, Ahmedabad, Gujarat-380015. He was
desirous to set up an ATM at his shop on rental basis hence,
complainant helped him to set up an ATM with the help of AGS
Transact Technologies Ltd. Pursuant to said set up of ATM, as
per terms and conditions as mutually agreed in M.O.U. between
accused and him, he was entitled for commission of Rs.75,000/-
from accused.
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CNR No.MHMM19-001905-2018
4] Accused issued cheque bearing No.122735 dated
30/10/2017 for amount of Rs.75,000/- drawn on State Bank of
India, Prerna Tirth Road branch, Ahmadabad towards discharge
of said liabilities. Complainant deposited said cheque for
encashment with his banker i.e. D.C.B. Bank Ltd., Goregaon
branch. However, it was dishonoured with remark ‘Funds
Insufficient’ on 21/11/2017. Thereafter, on 20/12/2017
complainant issued demand notice to the accused through
advocate by R.P.A.D. The notice was deemed served on accused
on 25/12/2017. In spite of receipt of notice, accused did not
pay cheque amount to the complainant. Hence, this complaint.
Appearance of accused and his plea:
5] Pursuant to the issuance of summons, accused
appeared. The particulars of offence was explained to him vide
plea at Exhibit No.14. The accused did not plead guilty and
claimed to be tried.
6] As per provisions of section 143 of the Act, 1881
this case can be tried as a summary triable case. But the Court
has option to try it in summary manner or to try it in the
procedure laid down for summons trial case. As per Section
262(1) of Criminal Procedure Code, 1973 read with section 143
of the Act, there is an option to the Magistrate to adopt the
summary trial or not. The record of this court speaks that, this
case is tried as per the procedure of summons trial case. The
evidence of witness is recorded separately and in exhaustive
manner and not as laid down in section 263 of the Code of
Criminal Procedure, 1973.
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CNR No.MHMM19-001905-2018
Oral evidence of the complainant :
7] Complainant examined himself and led his evidence
as C.W.1 at (Exh.18) and also examined bank witness Shri.
Shivakant Tiwari- Relationship Manager of DCB Bank, Mumbai
as C.W.2 at (Exh.35). He has closed his evidence vide pursis
(Exh.43).
8] Documentary evidence of the complainant :
Complainant has relied upon following
documentary evidence :
Documents Exhibit
Verified copy of Power of Attorney dated
22/01/2018
20
Cheque 21
Cheque return memo 41
Demand notice 22
Postal receipt 23
Acknowledgment card 24
Authority Letter issued in favour of C.W.2
by DCB Bank
37
ID Proof of C.W.2 38
Bank account statement of complainant 39
Certificate under Section 65B of Evidence
Act
40
Examination of accused :
9] Inspite of issuance of N.B.W. against accused on
many occasions, he did not remain present, so, by order below
(Exh.44) I have dispensed with his statement under Section 313
of the Code of Criminal Procedure.
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CNR No.MHMM19-001905-2018
Argument of both side :
10] Heard holding advocate Smt. Dipika Ved for
complainant. Accused and his advocate absent. No argument
was advanced on behalf of accused.
11] In view of all these discussions following points
arise for my determination and I have given my findings on
them with the reason stated below :
Sr.No POINTS FINDINGS
1 Does the complainant prove that,
accused issued disputed cheque in
favour of his company for discharging
legally enforceable part liability or
debt ?
Yes
2 Does the complainant prove that he
presented the cheque within prescribed
period for encashment and it was
dishonored for the reason “Funds
Insufficient” ?
Yes
3 Does the complainant prove that
complainant issued statutory notice to
the accused within prescribed period
and in spite of receipt of it, he failed to
pay the amount of disputed cheque to
his company within stipulated period?
Yes
4 What order ? Accused is
convicted.
R E A S O N S
AS TO POINT NO.1:
12] Section 138 of N.I. Act provides that the drawer of
the cheque is deemed to have committed the offence if among
other ingredients, following ingredients are fulfilled :
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(i) Accused drawn a cheque on an account maintained by him
with a banker for the payment of any amount of money to
complainant.
(ii) The cheque is drawn for the discharge of the ‘whole or part’
of any debt or other liability. ‘Debt or other liability’ means
legally enforceable debt or other liability.
13] Complainant has led his evidence vide affidavit of
examination-in-chief (Exh.18). He has relied upon documents
filed alongwith list (Exh.19). He has reiterated all the
contentions of the complaint in his affidavit. He has contended
that he has been authorized by irrevocable Special Power of
Attorney executed by proprietor of complainant firm to file
present complaint and to depose in the matter. He states that he
is acting as manager in the complainant firm. It is his evidence
that he is well conversant with facts and circumstances of the
present case. He states that his firm had helped accused to set
up an ATM in his shop with the help of one company by name
AGS Transact Technologies Ltd. He says that pursuant to the said
transaction, accused had agreed to pay him commission of
Rs.75,000/- for said work. He testifies that accused issued
cheque bearing No.122735 of Rs.75,000/- dated 30/10/2017
drawn on SBI, Prerna Tirth Road branch in favour of
complainant towards commission amount as agreed.
14] No application was moved by accused seeking
permission to cross-examine C.W.1. He did not conduct cross
examination of C.W.1. Testimony of C.W.1 that he has been
authorized by special power of attorney to file present complaint
and to depose on behalf of proprietor of complainant firm is
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CNR No.MHMM19-001905-2018
substantiated by verified copy of Power of Attorney (Exh.20).
His evidence that accused towards payment of commission
amount for setting up ATM at his shop, issued cheque in his
favour receives support from cheque (Exh.21).
15] Section 139 of N.I.Act provides that, it shall be
presumed unless the contrary is proved, that the holder of the
cheque received the cheque of the nature referred to in section
138 of N.I. Act. for the discharge in whole or in part, of any debt
or liability. In view of the section it is incumbent upon the court
to presume that the cheque issued was in discharge of the debt.
Negotiable Instruments Act lays down special rule of evidence
and certain special presumption and preclude certain plea being
raised in particular circumstances. There is presumption under
section 118 of N.I. Act that, the consideration has passed for
execution of Negotiable Instruments. Said presumption is
rebuttable one. Accused can rebut the presumption by putting
his defence up to the test of preponderance of probability.
16] It is not disputed position that cheque (Exh.21) was
of of bank account of accused and it was signed by him. In the
context of this position, presumption provided under Section
118 and 139 of Negotiable Instruments Act have arisen in favour
of complainant.
17] It is settled position of law that standard for rebuttal
of presumption under Section 139 is of preponderance of
probabilities and for such rebuttal inference can be drawn not
only from the material brought on record by the parties, but also
from the circumstances relied upon by them. Accused has not
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conducted cross-examination of C.W.1 or has not led any
defence evidence. All the contentions of C.W.1 are remained
unchallenged.
18] It appears from the oral as well as documentary
evidence led by complainant and legal presumption that accused
issued cheque in question for discharging his legally enforceable
liability to the complainant. Therefore, I hold that, complainant
has proved point No.1. So I answer it as “Yes”.
AS TO POINT NO.2:
19] C.W.1 has deposed that he deposited the cheque in
question (Exh.20) for clearance with his banker i.e. DCB Bank
Ltd., Goregaon branch, but it was dishonored for the reason
‘Funds Insufficient’ on 21/11/2017. Shivakant (C.W.2 ) is a
relationship manager from DCB Bank, Mumbai. He has given
evidence that he has been given authority (Exh.37) by his bank
to produce document on record and to depose in the matter. He
has produced his ID Card (Exh.38) on record to show that he is
serving in DCB Bank. It is his evidence that complainant has
current account No.00422900001823 in his bank. He has
produced on record bank statement of complainant for the
month of November 2017 which is at (Exh.39). He has produced
certificate under Section 65B of the Evidence Act (Exh.40) in
support of said statement. He has further produced on record
bank memo of cheque No.122735. He states that the cheque was
dishonoured for the reason ‘Funds Insufficient’ on 21/11/2017.
The bank memo is at (Exh.41).
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20] It is opt to refer here Section 146 of N.I. Act which
provides that the Court shall in respect of every proceeding
under this Chapter, on production of bank’s slip or memo having
thereon the official mark denoting that the cheque has been
dishonoured, presume the fact of dishonour of such cheque,
unless and until such fact is disproved.
21] Accused has not moved an application seeking
permission to cross-examine C.W.1 and C.W.2. Evidence of both
witnesses have remained unshaken. It is settled principle of law
that complainant has to prove his case on his own leg.
Contentions of complainant that the cheque was presented for
encashment and it was dishonoured for the reason ‘Funds
Insufficient’ is remained unchallenged. Cheque return memo
(Exh.41) bears official mark and the same denotes that the
cheque has been dishonoured. His evidence on said aspect gets
corroboration from cheque return memo (Exh.41) and evidence
of C.W.2. Considering the date on the cheque (Exh.21), date of
it's deposit and date of it’s return mentioned on memo (Exh.41),
it appears that cheque was deposited within stipulated period
i.e. three months for clearance. It also appears from cheque
return memo (Exh.41) that the cheque was dishonoured for the
reason mentioned in the complaint.
22] In view of the oral as well as documentary evidence
referred supra, it is established that, the cheque was presented
for encashment within prescribed period and it was dishonored
for the reason “Funds Insufficient”. Therefore, I answer point
No.2 as “Yes”.
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AS TO POINT NO. 3 :
23] C.W.1 has given evidence that he got knowledge
about dishonor of cheque on 21/11/2017. It is his evidence that,
he issued demand notice dated 20/12/2017 to accused by
R.PA.D. demanding amount of the cheque. As per his evidence,
the notice was duly dispatched on 20/12/2017 on the address of
accused by R.P.A.D. He affirms that notice was deemed served
on the accused on 25/12/2017. He has next affirmed that
inspite of service of notice, accused failed to pay amount of the
cheque to him within a stipulated period.
24] Section 138 clause (b) and (c) of N.I. Act prescribes
that, in order to constitute an offence under the section demand
notice for the payment of cheque amount should be given in
writing to the drawer of cheque by the payee within 30 days of
the receipt of information by him from the bank regarding the
return of the cheque as unpaid and the drawer of the cheque
fails to make the payment of the amount of money to the payee
within 15 days of the receipt of the notice.
25] Oral evidence of C.W.1 on the point of issuance of
notice to the accused is substantiated by copy of notice at
(Exh.22). His testimony that notice was sent by R.P.A.D to the
accused is corroborated by copy of postal receipt (Exh.23). His
evidence that accused received the notice has remained
unchallenged.
26] It appears that demand notice was sent on the
address of accused mentioned in complaint. Therefore, it can be
inferred that the demand notice has been served on the accused
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CNR No.MHMM19-001905-2018
on the date mentioned in the affidavit vide acknowledgment
card (Exh.24). Accused has not disputed correctness of his
address mentioned in the complaint after appearing in the
matter. He has also not disputed factum of receipt of notice.
27] Considering the date of getting knowledge of
dishonor of cheque by the complainant and the date of issuance
of demand notice by him, it appears that the notice was given
within prescribed period of one month to accused. It appears
that notice was duly served on the accused. In view of aforesaid
discussion and legal position, I held that complainant has proved
that, he issued statutory notice to accused within prescribed
period and in spite of receipt of it, accused failed to pay an
amount of the cheque to him within stipulated period.
Therefore, I answer point No.3 as “Yes”.
AS TO POINT NO. 4:
28] In view of findings recorded against point Nos.1 to
3, I hold that the complainant has proved essential ingredients
of section 138 of N.I. Act against accused. Therefore, I find
accused guilty for the said offence. I stop here my judgment to
hear the accused on the point of quantum of sentence.
Date : 18/03/2025
Shri. R. D. Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
29] Accused and his advocate absent. Heard holding
advocate Smt. Dipika Ved for complainant. She submits that
accused may be sentenced to pay double amount of cheque as
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CNR No.MHMM19-001905-2018
compensation to the complainant and imprisonment may also be
imposed on him.
30] This court has considered the probability of
extending the benefit of 'Probation' to the accused. This offence
is an economic offence. Though it is a criminal trial, considering
the statement, objects and reasons while enacting this
legislation, it is understood that, the very object of the Act, is to
enhance the credibility of transaction by cheque. The
complainant has already suffered the consequences of dishonor
of the cheque. In this background, setting the accused free on
bond of Probation will not meet the ends of justice. Hence, this
Court is of opinion that this is not a fit case to extend the benefit
of Probation to the accused.
31] Giving careful thought to the peculiar circumstances
of case and to the sentencing policy, the sentence should be just
adequate to have deterrence. The case is dragged more than
seven years. The sentence of fine only would serve the purpose.
Amount of cheque is Rs.75,000/-. The cheque is of the year
2017. So this Court is of the opinion that, the complainant will
be adequately compensated only if he gets the double amount of
disputed cheque out of fine amount.
32] Considering all these things, the amount of fine is
determined as Rs.1,50,000/- vide Section 357(1) of the Code of
Criminal Procedure. In default of payment of fine, a sentence of
two months imprisonment is awarded. Thus, in answer to point
No.4 following order is passed :
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CNR No.MHMM19-001905-2018
O R D E R
(1) Accused is convicted of the offence punishable under
section 138 of Negotiable Instruments Act vide
Sec.255(2) of the Code of Criminal Procedure and is
sentenced to pay fine amount of Rs.1,50,000/- (Rupees
One Lakh Fifty Thousand Only) within a month from
today in default of payment of fine he shall suffer simple
imprisonment for two months.
(2) If fine amount is deposited, whole amount be paid to
complainant as a compensation as per Section 357(1) of
Cr.P.C. after appeal period is over.
(3) He shall surrender his bail bonds.
(4) Issue warrant against him.
(5) Copy of judgment be given free of costs to accused after
execution of warrant against him.
Date : 18/03/2025
Shri. R. D. Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
Dictated on : 18/03/2025
Transcribed on : 18/03/2025
Signed on : 18/03/2025
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