Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 732/SS/2019
CNR No. : MHMM19-003093-2019
Received On : 25/02/2019
Registered On : 25/02/2019
Decided On : 07/08/2024
Duration :Y-05, M-05, D-12
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS), ANDHERI
(Court No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 732/SS/2019 Exh. 49
Prachi Ganesh Karawade.
Aged about 43 years, Occu : Service
Adult, Indian Inhabitant of
Residing at Room No. 301, 3rd floor,
Sneha Sadan Society, Laxmi Nagar,
Ghatkopar (East), Mumbai – 400 075. -- Complainant
Versus
Sudhakar Balaji Chavan.
Residing at 11/595, Prajal CHS Ltd.,
MHB Colony, Sardar Nagar – 1, Sion Koliwada,
Sion Mumbai- 400022.
&
Sudhakar Balaji Chavan.
M/s. Vakrtund Group,
Having Office at Janani Apartments,
Plot No. 8, Sector 5 Sanpada,
Navi Mumbai – 400 705. -- Accused
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OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Advocate for the complainant : Ninad Chavan.
Advocate for the accused : Pandurang Waghchourave.
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JUDGMENT
(Delivered on 07th of August 2024)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“N.I Act” for short) for dishonor of a cheque of Rs. 1,00,000/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, she knows the
accused as he is well known builder and carrying on business in the
name and Style of M/s.. Vakratund Group. He is a proprietor of said
firm. The complainant was searching for suitable room premises for
her family members. She came in the contact of accused and accused
informed her that, he has constructed and developed many buildings in
Navi-Mumbai. The complainant had booked flat No. 202 at Plot no.
355, Sector 6, Sarsolegaon, Nerul, Navi-Mumbai, Dist. Thane for total
consideration of Rs. 14,00,000/-. It is further averred by the
complainant that on 22/09/2016, he had paid total sum of Rs.
5,00,000/- as a part payment to accused. As per her submission, she
paid Rs. 50,000/- in cash on 15/08/2016, Rs. 1,50,000/- by cheque
No. 169044 of Federal Bank, Andheri Branch, on 22/09/2016, Rs.
3,00,000/- by way of cheque No. 169045 of Federal Bank Andheri
Branch, dated 22/09/2016. On 22/09/2016 the agreement for sale was
executed between complainant and accused.
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03. As per submission of complainant, she approached the banker for
loan to pay the balance amount. She came to know, the said flat was
illegal and therefore she canceled the said agreement. Accused assured
her for refund of part payment of Rs. 5,00,000/-.
04. The complainant further submitted that, the accused for the
discharge of his part liability, issued a cheque bearing No. 012289 dated
22/11/2018 for Rs. 1,00,000/- drawn on the Hongkong and Shanghai
Banking Corporation Limited, Thane (W), Mumbai to the complainant.
Thereafter, the complainant deposited the above said cheque for
encashment in his The Federal Bank Ltd., Andheri (W), Mumbai. The
same was returned unpaid from drawee bank with endorsement of
'Account closed'. Accordingly, the Federal Bank Ltd. issued memo dated
13/12/2018. Thereafter, she contacted the accused and requested to
pay cheque amount but the accused intentionally not paid said amount.
Thereafter, complainant issued demand notice dated 09/01/2019 to
accused. The notice was duly served on the accused but accused failed
to pay cheque amount within stipulated period. Hence, the complainant
constrained to file present complaint.
05. After recording statement of the complainant and perusing
all documents produced on record, process came to be issued against
the accused for the above offence. In response to summons, the
accused appeared. Particulars of offence recorded below Exh. 13 which
were read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
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06. The accused did not conduct the cross-examination of
complainant. The complainant has closed her evidence by filling
evidence close pursis below Exh. 42 and thereafter the matter was kept
for the statement of accused U/s. 313 of the Code of Criminal
Procedure, 1972 (in short 'the Code').
07. The statement of accused under Section 313 of the Code was
recorded vide Exh. 48. In his statement U/s. 313 of the Code, accused
submitted that, the cheque was issued for security purpose and he had
not instructed to complainant to deposit that cheque.
08. Heard Ld. Counsel Mr. Ninad Chavan for complainant.
Inspite of opportunity given, none appeared for the accused to advance
argument.
09. From perusal of complaint and record, following points
arise for my determination. I have recorded my finding and reasons
thereon as under:
Sr. No. Points Findings.
1. Does the complainant prove that cheque No.
012289 (Exh. 23) was drawn by accused for
legally recoverable debt or other liability?
Yes.
2.
Does the complainant prove that the said
cheque returned unpaid for the reason
“Account closed”?
Yes.
3.
Does the complainant prove that she had
issued demand notice to the accused within
limitation demanding cheque amount?
Yes.
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4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under section 138 of the
Negotiable Instrument Act ?
Yes.
6. What order? The accused
is convicted.
REASONS
10. In order to prove the case, the complainant namely Prachi
Karawade (C.W.1) has filed her evidence affidavit at Exh. 14.
Complainant has also examined a bank witness namely Ajeesh Kumar
K.V. as a (C.W. 2) at Exh 36. The complainant also placed her reliance
upon following documents:
Description of documents Exh. No.
Receipt Article-A
Copy of cheque no. 169044 Article – B
Copy of sale deed Article- C
original cheque Exh. 23
Cheque returned memo Article -D
Office copy of notice Exh. 24
Postal receipts Exh. 25 and 26
A. D. Card Exh. 27
Returned envelope Exh. 28
Bank statement of complainant for the period
01/01/2016 to 31/12/2017 along with
certificate of 2-A of Bankers books of
Evidence Act
Exh. 39 and 40
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As to Point No.1:-
11. In order to prove the allegation leveled against the
accused, the complainant has filed her evidence affidavit. As per her
evidence, the complainant was searching suitable premises for her
family in the area of Navi-Mumbai. Accused is well known builder,
carrying on business in the name and style of M/s. Vakratund Group
and he is a proprietor of said firm. Complainant booked a flat No. 202
at plot no. 355, Sector 6, Sarsoligaon, Nerul, Navi Mumbai, Dist. Thane
for total consideration of Rs. 14,00,000/-. The complainant has paid
total Rs. 5,00,000/- on 22/09/2016 as a part consideration. The
complainant has paid above amount as Rs. 50,000/- by cash on
15/08/2016, Rs. 1,50,000/- by cheque no. 169044 dated 22/09/2016
of Federal Bank, Andheri branch, Rs. 3,00,000/- by cheque no. 169045
dated 22/09/2016 of Federal bank, Andheri Branch, Mumbai. The
agreement for sale was executed. She approached with bank for home
loan to pay the remaining consideration but the banker refused to
sanction the loan as the said flat was illegal. Therefore, complainant
canceled the agreement and demanded part payment.
12. It is further came in the evidence of complainant that, the
accused for the discharge of of his part liability, issued a cheque bearing
No. 012289 dated 22/11/2018 for Rs. 1,00,000/- drawn on the
Hongkong and Shanghai Banking Corporation Limited, Thane (W),
Mumbai to the complainant. The same was returned unpaid from
drawee bank with an endorsement “Account closed”.
13. The accused has not conducted the cross-examination of
the complainant.
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14. Before adverting towards the merit of case, it is necessary
to deal with some legal principles regarding presumptions contemplated
in Section 118 and 139 of the Act and standards of proof for its
establishment or also for rebuttal. The Hon'ble Supreme Court of India
in
T. Vasanta Kumar v/s. Vijay Kumar (2015) 8 SCC 378 has held that,
“the presumption mandated by Section 139 includes a presumption that
there exists a legally enforceable debt or liability. This is of course in
the nature of a rebuttable presumption and it is open to the accused to
raise a defence wherein the existence of a legally enforceable debt or
liability can be contested. However, there can be no doubt that there is
an initial presumption which favours the respondent complainant”.
15. The Hon’ble Supreme Court of India in the case
Rangappa V.
Mohan reported in AIR 2010 SC 1898, has held that, “
the presumption
mandated by Section 139 of the Act does indeed include the existence
of legally enforceable debt or liability.” In the present case, the accused
has not conducted the cross-examination of complainant. Accused has
not sent reply to the demand notice of complainant. Therefore, it can
be gathered that, accused has not challenged the signature from cheque
(Exh. 23). This shows that, the signature of accused from cheque (Exh.
23) is not in dispute. Therefore, the presumptions under Section 118
and 138 of the Act are raised in favor of complainant.
16. The Hon'ble Supreme Court of India in case of
M.S.
Narayan Menon @ Mani V/s. State of Kerala and another (Appeal (Cri.)
1012 of 1999 decided on 04/07/2006) has laid down the rules
regarding the standards of proof for establishment of case as well as of
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rebuttal of defence in the case filed under Section 138 of the Act. The
Hon'ble Supreme Court of India has observed that
“It is not necessary for the defendant to
disprove the existence of consideration by way of direct
evidence. The standard of proof evidently is pre-
ponderance of probabilities. Inference of pre-ponderance of
probabilities can be drawn not only from the materials on
records but also by reference to the circumstances upon
which he relies. Presumption drawn under a statute has
only an evidentiary value. Presumptions are raised in terms
of the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another.”
17. The Hon'ble Supreme Court of India in case of Sumeti VIJ
V/s. M/s. Paramount Tech Fab, Criminal Appeal No(s) 292 of 2021,
(Arising out of SLP (Crl.) No (s). 8498 of 2019), in which the decision
of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another, 4 (2019)
18 SCC 106 is discussed and wherein it is laid down the procedure as to
how the accused can rebut the presumption under Section118 and 139
of the Act,
“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 non-existence 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
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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
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 of the Act. 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, thereafter, the
presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue”.
18. The Hon'ble Bombay High Court in the case of
Vishnu Vs.
State of Maharashtra (Cri. Rev. Application No. 176/2015 decided on
24/01/2019) observed that,
“There cannot be any manner of dispute with
the proposition that once the presumption arising under
Section 118 read with Section 139 of the Act is raised, it can
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be rebutted by the accused on preponderance of probability
at the trial. This can be done on the basis of cross-
examination of the complainant and his witnesses, if any,
and/or by leading independent defence evidence.”
19. As accused has not challenged his signature on the cheque
(Exh. 23), the presumptions under Section 118 and 139 of the Act are
raised in favor of complainant. Therefore, in view of the observations
given in case of Rangappa V/s. Sri Mohan (Cited Supra), the accused
has to raise a probable defence which creates doubts about the
existence of a legally enforceable debt or liability and the prosecution
can fail. It also makes clear that, mere denial is not sufficient to rebut
the presumption which is raised in favor of complainant. As observed in
the case of
Vishnu Vs. State of Maharashtra (cited supra), accused has
many modes to bring on record his defence e.g. by replying upon
notice, complaint, complainant's evidence and also by mode of cross
examination, his own testimony or of other witnesses, if cross examined
and also through statement of accused recorded under section 313 of
the Code. In the present case, the accused has not conducted the cross-
examination of complainant. The accused has not filed on record that,
he has sent reply to the demand notice. Further, in his statement
recorded U/s. 313 of the Code, he submitted that, the cheque was
issued for security purpose and he had not instructed to complainant to
deposit that cheque.
20. In the case in hand, as I observed above the accused has
not conducted cross-examination of the complainant. In the statement
recorded U/s. 313 of the Code the accused submitted that, the cheque
was issued for security purpose and he had not instructed to
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complainant to deposit that cheque. So far as, the submission of accused
that, cheque was given for security purpose is concerned, the accused
has not brought on record any material to show that, the cheque was
given by way of security. The accused has not conducted the cross-
examination nor sent reply notice. Therefore, the accused has not
rebutted the presumption available in favour of complainant. Per-
contra, in the evidence of complainant, it has came on record that, she
has paid Rs. 5,00,000/- as a part consideration. She has examined
Ajeesh Kumar K. V. (C.W.2) who is a Assistant vice President of the
System Administrator with Federal Bank, Andheri (W) branch. In his
evidence, the bank statement of complainant for the period of
01/01/2016 to 31/12/2017 came to be proved which is at Exh. 39.
I have perused the bank account statement of complainant at Exh. 39
and it seems that, the total amount of Rs. 4,50,000/- paid by the
complainant to the accused is shown. As I discussed above the accused
has not cross-examined. Further nothing has brought on record in the
statement of 313 of the Code. Therefore, it becomes clear that the
accused has utterly failed to rebut the presumption raised under section
118 & 139 of the Act. Therefore, I hold that the complainant has duly
proved that accused has issued the subject cheque from his account in
favour of the complainant towards the legally enforceable debt. Hence,
point No. 1 is answered in the “affirmative”.
As to Point No. 2:-
21. As per contentions and evidence of complainant, the
cheque No. 012289 (Exh. 23) was presented for encashment. However,
the cheque was returned with remark as 'Account closed’. In support of
said contentions, the complainant produced the cheque return bank
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memo of Federal Bank Ltd. (Article-A). It is seen from the bank memo
(Article-A) that, the cheque was returned with endorsement 'Account
closed'. Complainant has filed her bank account statement for the
period 01/01/2018 to 31/12/2018. I also perused the statement of
accused recorded U/s. 313 of the Code at Exh. 48. In his statement, the
accused has admitted that the disputed cheque was dishonoured with
reason ‘Account closed’.
22. In his statement U/s. 313 of the Code, the accused has
admitted that the cheque was dishonoured with reason ‘Account closed’.
However, nothing is brought on record by the accused to rebut the
presumption in respect of bank memo (Article-A). After perusal of said
memo, it is seen that the cheque No. 012289 (Exh. 23) was dishonored
for reason 'Account closed'. However, nothing brought by the accused
on record to show his bonafide as well as also to show that at the
relevant time, the amount mentioned in the cheque was pending in his
account. Hence, no hurdle to held that the cheque was dishonor with
reason 'Account closed'. Consequently, point No. 2 is answered in the
“affirmative”.
As to Point Nos. 3 and 4 :-
23. As per evidence of Smt. Prachi Karawade (C.W. 1), after
dishonor of cheque of Rs. 1,00,000/- (Exh. 23), she issued demand
notice dated 09/01/2019 (Exh.24). The complainant has filed postal
receipts at Exh. 25 and 26 to show that, the notice was issued on the
correct address of the accused. In support of said contention, the
complainant produced demand notice dated 09/01/2019 (Exh. 24),
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postal receipt (Exh. 25 and 26) and postal A.D. card (Exh. 27). Upon
perusal of demand notice (Exh. 24) and postal receipt (Exh. 25 and 26)
it is seen that, the complainant issued notice on 09/01/2019 to the
accused on the following address :-
To,
Sudhakar Balaji Chavan.
Residing at 11/595, Prajal CHS Ltd.,
MHB Colony, Sardar Nagar – 1, Sion Koliwada,
Sion Mumbai- 400022.
&
Sudhakar Balaji Chavan.
M/s. Vakrtund Group,
Having Office at Janani Apartments,
Plot No. 8, Sector 5 Sanpada,
Navi Mumbai – 400 705.
24. Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipt at Exh. 25 and 26 that, the
said notice was sent on the correct address. In the statement recorded
U/s. 313 of the Code, the accused has admitted that, he has received
the demand notice. Therefore, there is no hurdle to held that
complainant sent demand notice on the correct address of accused.
Here, it is necessary to mention the observations given by Hon'ble
Supreme Court of India in case of C. C. Alavi Haji V/s. Palapetty
Muhammeed and anr reported in All MR (Cri.) 2007. Wherein it is
observed by Hon'ble Supreme Court of India that,
“15. Insofar as the question of disclosure of necessary particulars
with regard to the issue of notice in terms of proviso (b) of Section
138 of the Act, in order to enable the Court to draw presumption
or inference either under Section 27 of the G.C. Act or Section 114
of the Evidence Act, is concerned, there is no material difference
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between the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing the drawer
of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands
complied with. It is needless to emphasise that the complaint must
contain basic facts regarding the mode and manner of the issuance
of notice to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section 138 of
the Act, the Court is required to be prima facie satisfied that a case
under the said Section is made out and the aforenoted mandatory
statutory procedural requirements have been complied with. It is
then for the drawer to rebut the presumption about the service of
notice and show that he had no knowledge that the notice was
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. 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, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made 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 Bhaskarans 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
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strategies and escape from legal consequences of Section 138 of
the Act.”
In the matter in hand also, as discussed earlier, it is duly
established that the complainant sent demand notice on the correct
address of accused. As observed by Hon’ble Supreme Court of India in
the case of
C. C. Alavi Haji V/s. Palapetty Muhammeed and anr. (cited
supra), when the notice is sent by registered post by correctly
addressing the drawer of the cheque, the mandatory requirement of
issue of notice in terms of Clause (b) of proviso to Section 138 of the
Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
25. As already discussed in earlier points, it becomes clear that
the subject cheque (Exh. 23) was dishonored on 13/12/2018 for the
reason of 'Account closed'. It is seen from the record that, the notice
(Exh. 24) was posted on 10/01/2019 to the accused and so, it is seen to
be sent within 30 days of dishonor of cheque. As discussed earlier,
notice is served to the accused on 10/01/2019. It is not defence of the
accused that he repaid the cheque amount within 15 days of notice and
summons of this proceeding. So, point Nos. 3 and 4 are answered in the
“affirmative”.
As to Point No.5 :
26. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are proved by
the complainant. As already discussed in earlier points, it becomes
clear from memo (Article-A) that the cheque (Exh. 23) was dishonored
on 13/12/2018. The notice (Exh. 24) was sent on 10/01/2019 and so,
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it is seen to be issued within 30 days of dishonor of cheque (Exh. 23).
Therefore, the accused has to pay cheque amount within fifteen days
from 12/01/2019 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 28/01/2019. The complainant
has to file complaint within 30 days from the day of cause of action. The
complaint was filed on 25/02/2019. Therefore, the complaint is seen to
be filed within limitation. Hence, in view of entire evidence of the
complainant and failure of the accused to rebut presumptions given
under section 118 and 139 of the Act, it becomes clear that the accused
has committed an offence punishable u/s 138 of the Act. Consequently,
point No. 5 is answered in the “affirmative”.
27. In view of my findings recorded herein above on point
No.5, I am taking a pause to hear the accused in person, his advocate
but accused and his Counsel are absent. On the contrary, the
complainant and her Counsel are present. Learned counsel for
complainant has prayed for maximum punishment. The matter is of the
year 2019. Hence, it won't be proper to wait further by putting the case
on hibernation.
28. Further it would not be illegal to pass the Judgment of
conviction in absence of accused as Sec. 353 (6) and Sec. 418 (2) of
Code of Criminal Procedure empowers the court to pronounce
Judgment even of conviction in absence of accused and to issue
conviction warrant if court find it to be just and proper. Hence, coupling
the provisions laid down under section 353(6) and 418(2) of Code of
Criminal Procedure with the guidelines to dispose of the old cases
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expeditiously. Hence, I found it to be just and proper to pass the
Judgment of conviction in absence of accused where the accused is bent
upon to cause delay rather exercising his rights for defence. Thus, I do
not find any reason to keep the case pending when accused himself is
not willing to defend himself or even to appear before court.
Considering the age of case and the chances given to the accused I find
it to be justifiable and proper not to wait further and pronounce the
Judgment in absence of accused.
29. Admittedly the accused has given sufficient opportunity to
make payment of the cheque from notice of the complainant till
conclusion of trial but accused failed to make it. Therefore, in order to
deter the human tendency to handover cheque without intending to
honour the same, the punishment is required to impose upon the
accused rather than giving benefit of Probation of Offenders Act.
30. The object of the Act is to enhance the credibility of the
negotiable instruments. The cheque involved in the case in hand is Rs.
1,00,000/-. In the present matter, on 12/12/2018, the disputed cheque
was presented to the drawee bank. If it would have had encashed
regularly, complainant could have received the amount in the month of
December 2018. That amount is admittedly lying with the accused. The
Hon’ble Supreme Court of India in the case of
R.Vijayan V. Baby and
anthers AIR 2012 SC 528, has discussed and expressed several aspects
to determine the amount of compensation and interest on the cheque
amount. Para Nos. 14 to 18 of the above judgment needs to be
reproduced here and those are as under:
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“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
the power to levy fine upto twice the cheque amount
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
Direction to pay compensation by way of restitution in
regard to the loss on account of dishonour of the cheque
should be practical and realistic, which would mean not only
the payment of the cheque amount but interest thereon at a
reasonable rate. Uniformity and consistency in deciding
similar cases by different courts, not only increase the
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice.”
31. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding
9 % per annum interest on the cheque amount by way of compensation
to the complainant. If interest on cheque amount (Rs. 1,00,000/-) at the
rate of 9 % p.a. is calculated for the period of 65 months i.e. from the
filing of present complaint (25/02/2019 to 07/08/2024), it comes to
Rs. 48,750/-. Cheque amount is Rs. 1,00,000/-. Thus, the amount of
Rs. 1,48,750/- is necessary to give to the complainant as an
compensation.
32. The object of the Act is to enhance the credibility of the
negotiable instruments. There is no criminal antecedent of accused
came on record. Thus, after considering said circumstances, amount of
cheque, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for one month will be proper and justified.
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19 C. C. NO. 732/SS/2019
CNR No. : MHMM19-003093-2019
33. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed:
ORDER
1. Accused Mr. Sudhakar Balaji Chavan, Age : Adult is
convicted under Section 255 (2) of the Code of
Criminal Procedure, 1973 for an offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 and sentenced to suffer simple Imprisonment
for one month.
2. Accused is directed to pay compensation of Rs.
1,48,750/- (Rs. One Lac Forty Eight Thousand Seven
Hundred Fifty Only) to the complainant within three
months from today, in default to suffer Simple
Imprisonment for Two months.
3. Accused to surrender to his bail bond.
4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
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20 C. C. NO. 732/SS/2019
CNR No. : MHMM19-003093-2019
5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
6. Today i.e. on the date of judgment accused remained
absent, hence issue standing Non-bailable 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.
7. The copy of this Judgment shall be send to the convicted
accused, free of cost, in view of section 363(1) of the Code
of Criminal Procedure, 1973.
8. Dictated and pronounced in open court.
Sd/-
Mumbai (Y. P. Pujari )
Date:- 07/08/2024 Judicial Magistrate (First Class)
48th Court, Andheri, Mumbai.
Dictated On : 07/08/2024
Typed On : 07/08/2024
Signed On : 07/08/2024
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