Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 /15 C. C. No. 1292/SS/2018
Filed on : 09/03/2018
Registered on : 09/03/2018
Decided on : 16/09/2022
Duration : 04Y. 06M. 07D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 1292/SS/2018
CNR: : MHMM190031902018
Exh. No.
Mr. Shahin Hussain Khan.
Age : 38 years, Indian habitant,
Residing at 106, Sajid Tower, AWing,
1st Floor, S. V. Road, Kevni Pada,
Amboli Naka, Jogeshwari (W),
Mumbai – 400 102 ...Complainant
V/s.
Mrs Meera Rajesh Verma.
Indian Habitant,
Occu : Housewife,
Residing at 204, BWing, Mahaisha Villa,
Veera Desai Road, Andheri (W),
Mumbai – 400 058. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Anani Khan for the complainant.
Advocate Shweta Varadkar for the accused.
JUDGMENT	JUDGMENT
(Delivered on 16/09/2022)
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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.)
Case of the complainant in nutshell is as under :
2] It is the case of complainant that she has a friendly
relations with the accused. Accused approached to complainant for
friendly loan of Rs., 2,00,000/ and accordingly complainant agreed to
give loan of Rs. 2,00,000/. It is case of complainant that, in order to
repay this amount, accused issued cheque dated 29/01/2018 for an
amount of Rs. 2,00,000/ bearing no. 000004 drawn from his account
maintained with ICICI Bank, J. B. Nagar Branch, Mumbai in favour of
complainant.
3] Complainant presented cheque for clearance with his banker
namely Corporation Bank, Amboli Branch, Mumbai. However, vide
bank memo dated 31/01/2018 said cheque returned unpaid with
remark “Account closed”.
4] Therefore, on 07/02/2018 complainant issued statutory demand
notice calling upon accused to pay cheque amount within 15 days from
the date of service of notice. According to complainant, notice was duly
served upon accused. Accused replied to said notice on 07/03/2018 ,
however she did not pay cheque amount to the complainant. Therefore,
having left no other option complainant filed this complaint.
5] After recording verification of complainant, process was issued
against the accused u/s. 138 of N.I. Act. In response to summons,
accused appeared in the matter and she was submitted to the bail. Plea
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of the accused was recorded, however she 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. 13
as per section 145 of the Negotiable Instrument Act. He also got
examined one Mr. Prashant Jadhav (C.w. 2) at Exh. 20 and Mr. Abdul
Shaikh (C.W. 3) at Exh. 21. Besides oral evidence, complainant has
relied upon following documentary evidence that includes:
Sr. No. Description of documents Exh. No.
1. Original cheque Exh. 16
2. Cheque returned memo Article A
3. Office copy of notice Exh. 17
4. Reply from accused Exh. 18
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 25 wherein accused
has taken defence of falsely implication. According to her, she had
given this cheque to one Mr. Prashant Jadhav for investment in Mutual
Fund and by misusing this cheque false case is filed against her. In
support of her defence, accused neither examined herself nor any
witness.
8] Heard Ld. Advocate for both parties and gone through the record.
Both parties have submitted their written notes of argument on record.
Perused written notes of argument filed on record by both parties. In
view of accusation and argument of both parties following points arise
for my determination and I have recorded my findings thereon as
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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
Negative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
Negative
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
Negative
5. Whether complaint is filed within period of
limitation? .. In the
Negative
6. What order ?
.. Accused is
Acquitted
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
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admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the
account of accused and it bears her signature.
AS TO POINT NO. 1
10] 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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11] 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
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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.
12] 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,
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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.
13] In order to prove his case, complainant examined himself by
filing his affidavit of examinationinchief at Exh 13, wherein he has
reiterated his case from the complaint. His evidence shows that, accused
was suffering from financial difficulty and therefore she approached
requesting for a friendly loan of Rs. 2,00,000/. It is further stated that,
accused had promised to return the friendly loan within a reasonable
period of time and thereafter accused issued a cheque dated
29/01/2018 for an amount of Rs. 2,00,000/.
14] Ld. Advocate for accused took crossexamination of complainant
at considerable length. In crossexamination, complainant has stated
that he had given loan to the accused in cash. He further stated that on
the date of giving loan, disputed cheque was given by the accused in
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his favour with instruction to deposit it immediately on second day.
According to him, no time period for repayment of loan was fixed but
accused had informed him to deposit cheque for clearance on next
date. He further stated that, nothing was reduced into writing about
the payment of Rs. 2,00,000/ in cash. In complaint or evidence,
complainant has not mentioned about the mode of payment given by
him to the accused. He further stated that he did not withdraw an
amount of Rs. 2,00,000/ from the bank in order to give it to the
accused but said amount was lying with him in cash. According to him,
at the relevant time, accused was working as the manager in the bank.
He further admitted that accused had given blank signed undated
cheque to him. However, lateron he stated that all contents from the
cheque were filled up, when it was handed over to him. He admitted
that contents from the cheque are written in 3 different ink. As per say
of accused his yearly income is Rs. 1,50,000/ to 2,00,000/
approximately. He further stated that he don't know that since 2018,
accused is working as a housewife. It is the defence of accused that
disputed cheque was given by her to Abdul Shaikh and same is misused
by the complainant and Mr. Abdul Rahim Shaikh by jointly filling
contents from it.
15] In support of his case, complainant got examined Mr. Prashant
Jadhav (C.W. 2) at Exh. 20. His evidence shows that in his presence,
complainant had given Rs. 2,00,000/ to the accused in cash and on the
same day accused had issued a cheque in favour of complainant. He
further stated that accused had asked to complainant to deposit said
cheque for clearance on next day.
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16] The last witness examined by complainant is Mr. Abdul Rahim
Shaikh (C.W. 3) at Exh. 21. His evidence also shows that, he knows the
accused as well as complainant. According to him, accused stated to
complainant that her husband is seriously ill and therefore for his
treatment, she required an amount of Rs. 2,00,000/. Accordingly, he
gave an amount of Rs. 2,00,000/ to the accused in cash and against
that accused issued cheque in favour of complainant. According to him,
at that time, he himself, Mr. Prashant Jadhav were present along with
complainant.
17] Ld. Advocate for accused took crossexamination of these two
witnesses at considerable length. It has come in the evidence of Mr.
Jadhav that he doesn't remember the date of transaction between
complainant and accused. He further stated that loan was given for one
day only. Mr. Rahim Shaikh has also stated that loan was given to
accused for one day only.
18] From perusal of evidence of complainant, it appears that in
evidence affidavit he stated that, loan was given to accused on
condition to repay it within reasonable period. However, in cross
examination he stated that, on the same day cheque was issued by the
accused in his favour stating that to deposit it for clearance on next day.
He has not stated as to why accused had borrowed an amount of Rs.
2,00,000/ from him, if she had that much amount in her account. If I
accept the case of complainant then it appeared that accused was
having an amount of Rs. 2,00,000/ in her account and it was within
the knowledge of complainant then why he gave Rs. 2,00,000/ to the
accused.
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19] Though said transaction between parties is not appears to be
natural and probable still on that ground alone it cannot be said that
complainant has failed to prove said transaction. As discussed earlier,
accused has admitted issuance of cheque from her account and she also
admitted her signature on it. According to her, said cheque was issued
by her to one Mr. Prashant Jadhav for investment in Mutual fund. It
was also suggested to complainant that, said cheque was given by her to
Mr. Shaikh (C.W. 3) and same is misused by the complainant by joining
hands with Mr. Shaikh. However, when Mr. Shaikh (C.W.3) and Mr.
Prashant Jadhav (C.W. 2) entered into witness box, no suggestions are
given on the part of accused to these witnesses suggesting that she had
given her cheque to them for investment in mutual fund or for any
other reason. Thus, defence raised by the accused is not at all probable
and sufficient to rebut the presumption u/s. 139 of N.I. Act. Once, she
admitted her signature on cheque, it was for her to explain how said
cheque went into possession of complainant. On the contrary
complainant and two witnesses have stated on oath that complainant
had given said amount in cash to the accused. Thus, evidence adduced
by the complainant is sufficient to raise the presumption u/s. 139 of N.I.
Act. Accused has failed to rebut the presumption u/s. 139 of N.I. Act.
In result point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
20] In order to prove that cheque was dishonoured,
complainant has produced on record cheque returned memo. However,
said memo doesn't bear seal of the bank and hence it was not admitted
in evidence and same was marked as ArticleA. Ld. Advocate for
accused has argued that complainant has failed to prove that cheque
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was dishonored for a reason mentioned in memo. According to her,
memo doesn't bear seal of the bank and therefore presumption u/s.
146 of N.I. Act has not attracted in this case. In support of her
argument she has relied upon judgment passed by Hon'ble Biombay
High Court in the case of Vandana Pandey V/s. Abhilasha Pande
decided in criminal appeal no. 360/2017 dated 08/08/2017
wherein Hon'ble High Court has observed as Under:
“9. In this context, Section 146 of the aforesaid Act is relevant, which
reads as follows :
"146. Bank's slip prima facie evidence of certain facts. 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."
10. The said provision states the manner in which a complainant can
prove dishonour of cheque. The complainant is required to produce slip
or memo having an official mark on it, denoting that the cheque has been
dishonoured. If such a document is placed on record by the complainant
it constitutes a prima facie evidence of dishonour and a presumption
operates about the fact of the dishonour of cheque, unless and until such
fact is disproved.
Thus, once such a memo or slip issued by the bank bearing its official
mark concerning dishonour of cheque is placed on record by the
complainant, the burden is clearly on the accused to disprove the fact of
dishonour of cheque.
11. But, there cannot be any doubt about the fact that Section 146 of the
said Act provides for one of the modes of proving dishonour of cheques
and it certainly cannot be the only mode of proving the same. In the
present case, the memo purportedly issued by the bank showing dishonour
of cheque, admittedly does not bear official mark of the bank. It was for
this reason, that the said document was not exhibited during evidence.
Thus, the mode specified in Section 146 of the said Act was not satisfied in
the present case and consequently no presumption arose about dishonour
of cheque in question. In such a situation, the appellant claims that the
dishonour of cheque was proved because a statutory notice was issued by
her to the respondent. It was pointed out that specific pleadings were made
in the complaint filed before the Court stating dishonour of the said cheque
and that when the respondent had failed to adduce any evidence in
support of her defence, the statements made by the appellant in this
statutory notice and the complaint were enough to prove dishonour of the
cheque. It was submitted that when there was no denial on the part of the
respondent about deposit and dishonour of the cheque in question, the
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trial Court could not have held that the appellant had failed to prove the
fact of dishonour of the cheque. It was further contended that when the
findings were rendered on the question of discharge of legal debt and it
was found by the trial Court that the appellant had indeed advanced hand
loan for the amount stated in the cheque to the respondent, there was no
reason why the trial Court could have held that the fact of dishonour of
cheque was not proved by the appellant.
21] From perusal of said judgment it becomes clear that burden is
upon the complainant to prove that cheque was dishonoured. In the
case at hand, while marking the document Ld. Advocate for accused
had denied all the documents and raised objection to give exhibit
numbers. Accordingly, cheque returned memo was excluded from
giving exhibit numbers, since it was not duly proved. Therefore, burden
was on the complainant to prove that cheque was dishonored and
returned unpaid by the bank. In crossexamination of complainant also
suggestion was given on the part of accused that memo filed on record
doesn't bear seal and signature of the bank and same was admitted by
the complainant. In such circumstances, it was for the complainant to
get proved that cheque was dishonoured. As observed by Hon'ble
Bombay High Court in the aforesaid ruling, initial burden is on
complainant to prove that cheque was dishonored . Lateron
complainant has produced on record his account statement, however
same was not duly proved and hence it was not exhibited. Complainant
did not try to get provedcheuqe returned memo or the bank statement
filed on record. Admittedly, memo or bank statement filed on record is
computer print out and same is not supported by certificate u/s. 65 B
of Indian Evidence Act. Thus, there is no evidence on record to show
that cheque returned memo was dishonored as mentioned in memo.
22] Since complainant has failed to prove that cheque was
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dishonoured, there was a no cause of action for issuance of notice as
well as for filing the complaint. Therefore, it cannot said that demand
notice was sent within limitation or complaint was filed within
limitation. In view of above discussion, I have come to the conclusion
that, complainant has failed to prove that cheque was dishonoured and
returned unpaid by the bank. In result point nos. 2 to 5 are answered
in the Negative.
AS TO POINT NO.6
23] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, though complainant has proved that disputed
cheques were issued from the account of accused but he failed to prove
that, it were issued for discharging any legal enforceable liability. He
also failed to prove that cheques were dishonoured. Consequently, he
failed to prove issuance of notice within limitation. Therefore, on that
count accused is entitled for acquittal. In result I proceed to pass
following order :
ORDER
1] The accused Mrs Meera Rajesh Verma is hereby acquitted
vide Section 255(1) of Criminal Procedure code for an offence
punishable under Section 138 of the Negotiable Instruments Act.
2] Bail bond of accused stands cancelled.
3] Accused shall execute P.R. Bond of Rs. 15,000/ to appear
before the Higher Court as and when such court issues notice in
respect of any appeal or petition filed against this judgment vide
section 437A of the Code of Criminal Procedure. Said bail bonds
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shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Mumbai (K. G. Sawant)
Dt. 16/09/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 16/09/2022
Typed On : 16/09/2022
Signed On : 16/09/2022
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