Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 1082/SS/2018
Filed on : 26/02/2018
Registered on : 26/02/2018
Decided on : 04/05/2024
Duration : 06Y. 02M. 08D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No.1082/SS/2018
CNR: MHMM190013522018
Exh. No.
Shri. Kunal Kamdar.
Proprietor of Rushabh Enterprises,
Having his office at :
1/35, Jagat Satguru Industrial Estate,
1st Floor, Vishweshwar Road, Goregaon East,
Mumbai – 400 0063. …Complainant
Versus
1. M/s. R. R. Polynet Pvt. Ltd.
A Private Limited Company registered under
the Companies Act, having its office at:
M/s. R. R. Polynet Pvt. Ltd.
Plot no. DG/38, Garment Zone, Dungara
GIDC, Vapi, Gujarat 396193.
2. Mr. Ram Singh, Director,
M/s. R. R. Polynet Pvt. Ltd.
Plot no. DG/38, Garment Zone, Dungara
GIDC, Vapi, Gujarat 396193.
3. Mr. Vinay Singh.
M/s. R. R. Polynet Pvt. Ltd.
Plot no. DG/38, Garment Zone, Dungara
GIDC, Vapi, Gujarat 396193. ...Accused
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Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Ravi Punjabi for the complainant
Advocate Mr. Vijay Sharma holding for Adv. R. P. Mishra for accused.
JUDGMENT	JUDGMENT
(Delivered on 04/05/2024)
Accused are 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, he is the proprietor of
“Rushabh Enterprises” whereas accused No. 1 is a private limited
company, of which accused nos.2 and 3 are directors. Complainant is
engaged in the business of treading in plastic colour masterbatch.
Director of accused no. 1 Mr. Ramsingh approached to complainant
with request to supply plastic colour and accordingly complainant
supplied plastic colour to the accused. Accused acknowledged the
delivery challan dated 28/08/2017 and issued cheque bearing no.
000729 dated 27/09/2017 drawn on Bank of Baroda, Vapi Branch for
an amount of Rs. 1,87,974/. Complainant presented said cheque for
clearance with his banker. However, vide memo dated 26/12/2017 it
returned unpaid with remark “Funds Insufficient”.
3] After dishonoure of cheque, complainant issued statutory demand
notice to accused on 15/01/2018 by Registered Post, calling upon
accused to pay the cheque amount, within stipulated time. Notice was
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duly served upon accused on 20/01/2018 but they failed to pay
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, which
was filed on 26/02/2018.
4] 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.
5] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 20. Besides
oral evidence, complainant has relied upon following documentary
evidence that includes:
Description of documents Exh. No.
Invoices Exh. 26 and 27
Delivery challan Exh. 28
Cheque deposit slip Exh. 29
Original cheque Exh. 30
Cheque returned memo Exh. 31
Office copy of demand notice Exh. 32
Postal receipts Exh. 33 and 34
Postal acknowledgement Exh. 35
Track report ArticleA
6] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 52, wherein accused
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denied case of prosecution in toto.
7] Heard Ld. Advocate for both parties and perused the written
notes of argument. 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
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 are
convicted
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REASONS
Admitted/undisputed fact
8] Before going further it is necessary to mention
admitted/undisputed facts of this case. Admittedly disputed cheque is
drawn from the account of accused no. 1 and it is signed by accused no.
2.
AS TO POINT NO. 1
9] 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.
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 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
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
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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.
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
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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.
12] In order to prove his case, complainant examined himself (C.W.1)
by filing his affidavit of examinationinchief at Exh. 20 wherein he has
reiterated his case from the complaint. Complainant has produced on
record tax invoices and delivery challan. Delivery challan bears seal of
the accused. According to complainant, disputed cheque was issued by
the accused to pay amount under invoices.
13] Ld. Advocate for accused, conducted crossexamination of
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complainant at length. Through crossexamination, accused have taken
following defences:
a) Seal of accused company appearing on delivery challan is
false and bogus.
b) Goods under delivery challan were not supplied to accused.
c) complainant has misused post dated cheque issued by the
accused.
14] Heard both parties and gone through the record. As
discussed earlier, delivery challan bears seal of the accused company
and signature of its representative. According to accused, said seal is
bogus and goods are actually not delivered to them. Accused did not
adduce any evidence in support of above defence. According to them,
they issued post dated cheque but complainant did not supply goods. If
that is the position, certainly there must be some communication on the
part of accused stating that, they issued post dated cheque but
complainant did not supply material to them. There is nothing to show
that, seal of the accused appearing on delivery challan is false and
bogus. Accused did not enter in the witness box to show that, they
were not liable to pay cheque amount to the complainant. Record
shows that, notice was served upon accused but they did not reply to it.
In such circumstances, defence taken by the accused is not appears to
be probable and acceptable. Accused have failed to rebut presumption
u/s. 139 of N.I. Act. Evidence shows that, disputed cheque was issued
by the accused for discharging legally enforceable libaility. In result
point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 to 5:
15] In order to prove that, disputed cheque was returned
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unpaid for reason “Funds insufficient” complainant has produced on
record cheque returned memo at Exh. 31. Said memo bears seal of the
bank and signature of bank officer. Therefore, it carries presumption
u/s. 146 of N.I. Act about dishonoured as mentioned in memo. Accused
failed to rebut said presumption.
16] It is matter of record that cheque was dishonored vide memo
dated 26/12/2017 and demand notice was sent on 15/01/2018 i.e.
within limitation. Postal A. D. Card filed on record shows that, notices
were duly served upon accused. Admittedly, accused neither replied
nor complied with the demand notice. Complainant has filed this
complaint on 26/02/2018 i.e. within limitation. In result, point Nos. 2
to 5 are answered in the affirmative.
AS TO POINT NO.6
17] 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. Sd/
(K. G. Sawant)
Date : 04/05/2024 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
18] I explained to accused that, he is held guilty for the
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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.
19] Accused and his advocate are present. Upon asking on the point
of sentence, Ld. Advocate R.P. Mishra for accused prayed to show
leniency and requested for minimum punishment. His company has
also gone in liquidation and financially also accused is not sound.
Saying so, he shown readiness to pay an amount of Rs. 2,75,000/ but
sought some time to pay the said amount.
20] On the other hand, Ld. Advocate Saurbhah Patil for complainant
prayed for maximum punishment to the accused and he further prayed
to give directions to him to provide maximum compensation to the
complainant. He further submitted that complainant has no objected if
he pays said amount within few days.
21] Heard both parties at length on the point of sentences and
perused the case record. While imposing sentence, court has to
consider nature of offence, purpose of legislature behind enactment of
said provision, conduct of the accused, age of the matter etc. In the
case at hand, matter is pending since 2018. Cheque amount in this case
of Rs. 1,87,974/. Today also accused has shown readiness to pay an
amount of Rs. 2,75,000/ and complainant has no objection to receive
the said amount. In such circumstance, I do not find necessary to
impose sentence of imprisonment but purpose will be served by
imposing fine and by granting compensation to the complainant.
Considering all these things, I am of the view that following sentence
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would meet the ends of the justice. In result, I proceed to pass
following order:
ORDER
i. The accused No.1 M/s. R.R. Polynet Pvt. Ltd, its director accused
no.2 Mr. Ram Singh & another director accused no.3 Mr. Vinay Singh
are 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 Nos. 1 to 3 are hereby sentenced to pay fine of Rs.
2,75,000/ for the offence punishable U/s. 138 of N.I. Act, they shall
pay said amount jointly or severally. In default of payment of fine,
accused Nos. 2 and 3 shall suffer simple imprisonment for the period of
Six months each.
iii. After recovery of fine amount of Rs. 2,75,000/, same shall be
paid to the complainant by way of compensation Vide Section 357(1) of
the Code of Criminal Procedure, subject to the orders of Honourable
Appellate Court (if any).
iv. Accused to surrender their 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
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the Code of Criminal Procedure, 1973.
vii. Dictated and pronounced in open court.
Sd/
Mumbai (K. G. Sawant)
Dt. 04/05/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 04/05/2024
Typed On : 04/05/2024
Signed On : 04/05/2024
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