Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1/13 C. C. No. 569/SS/2019
Filed on : 12/02/2019
Registered on : 12/02/2019
Decided on : 17/02/2023
Duration : 04Y. 00M. 05D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 569/SS/2019
CNR: MHMM190024962019
Exh. No.
Mr. Sunil Arun Bhilare.
Having address at plot no. 8,
Room No. D 4 Prithvi Darshan CHS,
Ganesh Mandir Lane, Four Bunglow,
Sardar Patel Nagar, MHADA,
Near Versova Telephone Exchange,
Mumbai – 400 053. ...Complainant
V/s.
Mr. Soumya Bhattacharya.
Having address at 5/6/1 Hem Chandra
Banerjee Lane, Souvagya Apartment,
3rd Floor, Shibpur, Howrah – 711102
Calcutta. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Prashant Dhavgaonkar for the complainant.
Advocate Mr. Rajesh Tiwari for the accused.
JUDGMENT	JUDGMENT
(Delivered on 17/02/2023)
Accused is mired in the trial, for having committed an
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offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
(Hereinafter it is referred as 'N.I.Act' in short.)
Case of the complainant in nutshell is as under :
2] It is case of complainant that, he is estate agent and accused
used to come to the complainant for taking premises on rental basis and
due to which there were friendly relations between him and accused.
In the month of May 2013, accused demanded friendly loan of Rs.
2,00,000/ from the complainant. Considering need of accused,
complainant advanced loan of Rs. 2,00,000/ to the accused in the
month of October 2013 with promise to repay it within one year. In
order to repay said amount, accused issued cheque baring no. 009417
dated 14/12/2018 for an amount of Rs. 2,00,000/ drawn from his
account, maintained with State Bank of India, Lokhandwala branch,
Mumbai58. Complainant presented said cheque on 14/12/2018 for
clearance with his banker, namely Corporation Bank, Lokhandwala,
Andheri. However, vide memo dated 15/12/2018, said cheque
returned unpaid for reason “Account Closed”.
3] Thereafter, complainant issued statutory demand notice,
dt. 10/01/2019, calling upon accused to pay the cheque amount within
statutory period given by law. Notice was duly served upon accused but
accused failed to pay cheque amount. Hence, complainant filed this
complaint against the accused on 12/02/2019.
4] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused were summoned. Post issuance of process,
presence of accused was secured before the court and they were
submitted to bail. Substance of accusation was read over to accused, to
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which they 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. 20 as per
section 145 of the Negotiable Instrument Act. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
Sr. No. Description of documents Exh. No.
1. Original cheque Exh. 23
2. Cheque depositing slip Exh. 24
3. Cheque returned memo Exh. 25
4. Office copy of notice Exh. 26
5. Postal receipts Exh. 27
6. Track report ArticleA
7. A. D. Card Exh. 28
6] After closer of complainant's evidence, case was fixed for
recording statement of accused U/s. 313 of Cr.P.C., however accused
did not appear and hence by passing order below Exh. 38 statement of
accused u/s. 313 of Cr.P.C. was dispensed with.
7] Heard Ld. Advocate for complainant. Perused written notes of
argument filed on behalf of complainant. Inspite of sufficient
opportunity given, Ld. Advocate for accused did not argue and hence
matter proceeded without hearing argument on the part of accused.
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8] In view of accusation and considering facts of this case, 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 “Account
closed”?
…. In the
affirmative
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
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REASONS
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
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.
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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
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
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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.
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
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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.
12] In order to prove his case, complainant examined himself
by filing his affidavit at Exh.20, wherein he has reiterated his case from
the complaint. His evidence shows that, he had advanced loan of Rs.
2,00,000/ to the accused on condition to repay it within one year. His
evidence further shows that in order to repay said amount, disputed
cheque was issued by the accused in his favour. Ld. Advocate for
accused has conducted crossexamination of complainant. In cross
examination, it has come on record that, demand notice was sent on
address of accused at Calcutta. It has also come on record that, amount
was given to the accused in the month of October 2013. It has further
come on record that no loan agreement was executed between the
parties. Complainant has denied suggestion given on the part of
accused that he was not in a position to give loan of Rs. 2,00,000/ to
the accused. It was further suggested that accused had issued blank
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signed cheque in favour of complainant, however same is also denied by
the complainant.
13] Thus, from perusal of evidence on record, it appears that accused
has just denied case of complainant by giving suggestions. It is needless
to say that mere suggestions are not enough to rebut the presumption
u/s. 139 of N.I. Act. Accused has not denied issuance of cheque and his
signature from the cheque. In such circumstances burden is on the
accused to show that, cheque was not issued for legal enforceable
liability, but it was issued for some other reason. As discussed earlier,
except denial, accused has not brought anything on record to show that,
he is not liable to pay cheque amount to the complainant. In order to
rebut presumption u/s. 139 of N.I. Act, accused has to raised probable
defence. Defence raised by the accused to rebut the presumption is not
at all probable and it is mere denial of case of complainant. Accused
has failed to rebut the presumption u/s. 139 of N.I. Act. Oral and
documentary evidence produced on record by the complainant, clearly
shows that complainant had advanced loan of Rs. 2,00,000/ to the
accused and in order to repay said amount, disputed cheque was issued
by the accused i.e. for discharging legally enforceable liability. In
result, point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
14] In order to prove that cheque was returned unpaid for
reason “Account closed”, complainant has relied upon his own oral
evidence in addition to documentary evidence i.e. cheque return memo
filed on record. Said memo clearly shows that cheque was returned
unpaid for a reason “Account closed”. As per section 146 of N.I. Act,
court shall in respect of every proceeding under this chapter, on
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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. In the case at hand
memo bears seal of the bank and signature of bank officer. Accused did
not bring any evidence to show that disputed cheque was not
dishonored for a reason mentioned in memo. Therefore, it remains
proved that cheque was dishonored for a reason “Account closed”.
15] It has come on record that cheque was dishonoured on
15/12/2018. Notice was sent on 10/01/2019. it was served upon the
accused. Admittedly, accused did not pay cheque amount to the
complainant within stipulated period. It is 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
16] 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, I do not find any special reasons
or justifications to extend the benefit of probation to accused 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 : 17/02/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
17] Inspite of repeatedly called neither accused nor his
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advocate appeared in this matter. Record shows that accused is
avoiding to remain present in the matter without any justifiable
reasons. Therefore, I am constrained and compelled to proceed with
the judgment in absence of accused. By his conduct accused has waived
off his chance to submit on the point of sentence. The offence
punishable U/s. 138 of N.I. Act is required to be tried summarily. For
such trials procedure contemplated in Code of Criminal Procedure for
the trial of summons case as a specified in Chapter XX of code is to be
adopted. This case is also tried as per the procedure prescribed for the
trial of summons case vide Chapter XX of Cr.P.C.
18] I have carefully gone through the provisions of Chapter XX
and Section 255 of the Code of Criminal Procedure. Unlike warrant
trial procedure, it is nowhere expressed under Chapter XX that accused
must be heard on the point of sentence before pronouncing it. Hence as
a mandate, it can't be invoked in summons cases. In fact in present
case, inspite of any speaking provisions, accused was given chance to
appear and submit on the point of sentence, but it was accused who
waved off his chance to open mouth on the point of sentence.
Therefore, this court proceeds further in the absence of accused. On
point of sentence Ld. Advocate for complainant has submitted that
maximum sentence of imprisonment and fine amount be imposed on
accused and also prayed to grant maximum compensation in favour of
complainant as per law.
19] In this matter, complainant has paid amount to the accused in the
month of October 2013. In order to repay said amount, accused had
issued in 2018. Almost 10 years have been passed from the date of
payment made by complainant to accused. Complainant has produced
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on record evidence to show that he has sent many messages to the
accused through Whatsapp and email and same were duly served upon
him. Still he has absconded. It shows conduct of accused that
somehow he wants to avoid liability of payment towards the
complainant. Therefore, accused is not entitled for any leniency.
Considering nature of offence, conduct of the accused, the period from
which matter is pending in my opinion following order will meet the
ends of justice:
ORDER
i. The accused Mr. Soumya Bhattacharya 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 period of
Six months and further he shall pay compensation of Rs. 4,00,000/
(Rs. Four Lacs) to the complainant vide Section 357(3) of the Code of
Criminal Procedure, in default of payment of compensation, accused
shall suffer further simple imprisonment for the period of one month
each.
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
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during the trial.
vi. Today i.e. on the date of judgment accused remained absent,
hence issue standing Nonbailable warrant against the accused for his
arrest through concerned police station for execution of sentence in
view of Section 418 (2) of Cr.P.C.
vii. The copy of this Judgment shall be send to the convicted accused,
free of cost, 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. 17/02/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 17/02/2023
Typed On : 17/02/2023
Signed On : 17/02/2023
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