Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 802/SS/2019
Filed on : 01/03/2019
Registered on : 01/03/2019
Decided on : 01/03/2024
Duration : 05Y. 00M. 00D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 802/SS/2019
CNR: MHMM190033372019
Exh. No.
Mr. Dinesh Ganpati Paranjape.
Adult, Indian Inhabitant R/o.
Mumbai. Prop. M/s. Salnik Solutions
having office at 509/510, Orchard mall,
Royal Palm Estate, Awing, 169, Aarey
Milk Colony Road, Goragon (E), Mumbai63. …Complainant
Versus
Mr. Sabir Mulla.
Prop. M/s. Ulka Services.
Having office at New Shakti
Co.Op Housing Society Ltd., B.105,
RNP park, Near Saibaba Mandir,
S. V. Road, Bhayandar (E), Dist. Thane. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Sunil Behal for the complainant
Advocate Mr. Dinesh Prajapati for accused.
JUDGMENT	JUDGMENT
(Delivered on 01/03/2024)
Accused is mired in the trial, for having committed an
offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
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(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, on 03/11/2016 vide
invoice no. 444, he sold out some material to the accused worth Rs.
2,37,238/. in order to discharge liability, accused issued cheque no.
138175 dated 11/04/2017 for an amount of Rs. 50000/ and cheque
no. 138176 dated 21/04/2017 for an amount of Rs. 50000/, both
drawn on his account maintained with ICICI bank, Bhainder branch.
3] Complainant presented said cheques for clearance with his
banker namely SBI, VileParle (W), Mumbai. However, both cheques
returned unpaid vide memo dated 13/06/2017 with reasons “Funds
Insufficient”.
4] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 10/07/2017, by R.P.A.D., calling upon
accused to pay the cheque amount, within stipulated time. Notice was
duly served upon accused but he failed to pay amount. Due to illness,
complainant could not file complaint within limitation, however
application filed by him for condonation of delay was allowed and
thereafter complaint was registered.
5] 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.
6] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 10, vide
section 145 of the Negotiable Instrument Act. Besides oral evidence,
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complainant has relied upon following documentary evidence that
includes:
Description of documents Exh. No.
Copy of registration certificate Article A and B
Delivery challan and tax invoice Exh. 24 and 25
Original cheques 26 and 27
Cheque returned memo Exh. 28
Office copy of notice Exh. 29
Postal receipt Exh. 30
Returned envelope Exh. 31
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 33, wherein accused
denied case of prosecution in toto.
8] Heard Ld. Advocate for complainant. In view of accusation and
argument of complainant, 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
cheques were issued by the accused, in
favour of complainant for discharging legal
enforceable liability?
…. In the
affirmative
2. Does complainant prove that cheques were
returned unpaid for reason “Funds
Insufficient”?
…. In the
affirmative
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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.
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
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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.
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
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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
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
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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
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. 10, wherein he has
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reiterated his case from the complaint. His evidence shows that, vide
invoice no. 444 dated 03/11/2016, he had supplied material to the
accused worth Rs. 2,37,238/. Those tax invoices are produced on
record by the complainant at Exh. 24. According to complainant, in
order to discharge his liability, disputed two cheques for an amount of
Rs. 50000/ each were issued by the accused. Inspite of opportunity
given, accused did not conduct crossexamination of complainant and
hence oral as well as documentary evidence adduced on the part of
accused has gone unchallenged. In his statement recorded u/s. 313 of
Cr.P.C., accused has admitted receipt of goods worth Rs. 2,37,238/ but
according to him, he has already cleared that payment. He further
stated that, cheques were issued for security purpose only. Accused did
not bring any evidence on record to support his defence that, he has
already paid amount under invoice to the complainant and cheques
were issued for security purpose only. Therefore, defence taken by the
accused is not reliable. Accused has failed to rebut presumption u/s.
139 of N.I. Act. Thus, it remains proved that, disputed cheques were
issued by the accused for discharging legally enforceable liability. In
result, point no. 1 has answered in the affirmative.
AS TO POINT NO. 2 TO 5
13] In order to prove that, disputed cheques were returned
unpaid for reason “Funds Insufficient” in the account of drawer.
Complainant has produced on record cheque returned memo at Exh.
28. Said memo shows that, both cheques were returned unpaid for
reason “Funds Insufficient”. Said memo bears seal of the bank and
signature of bank officer. Therefore, as per Section 146 of N.I.Act, it is
to be presumed that, cheques were presented for clearance and same
were returned unpaid for reason “Funds Insufficient” in the account of
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drawer.
14] It is matter of record that, complainant has sent demand notice
on 10/07/2017 by registered post i.e. within limitation. Notice was
returned unclaimed by the accused on 19/07/2017. It is not the case of
accused that, notice was not sent on correct address, therefore, in view
of section 27 of General clauses act, r/w. Section 114 of Indian
Evidence Act, notice sent through RPAD is presumed to be served upon
accused on 19/07/2017. Admittedly, accused has not paid cheque
amount after service of notice. As already mentioned complaint was not
filed within limitation. However, application filed by the complainant
for condonation of delay of 43 days was allowed by my predecessor. In
such circumstances, it becomes clear that, complaint is duly filed by the
complainant as per provision stated in Negotiable Instrument act.
Since, accused has failed to honour the cheque and further comply the
notice, point no. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
15] 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.
(K. G. Sawant)
Date : 01/03/2024 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
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Hearing on the point of sentence:
16] I explained to accused that, he is held guilty for the 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.
17] Upon asking on the point of sentence, accused submitted that, he
want some time to pay the amount. He further stated that, he is ready
to pay the amount till the end of March 2024 saying so he prayed to
show leniency. Ld. Advocate Dinesh Prajapati for accused also prayed
to show leniency. On the other hand, Ld. Advocate Sunil Behal for
complainant submitted that, accused is promising since last 1 ½ year
but he is not paying the amount, he just killing the time. Hence, he
prayed court may pass appropriate order as per law.
18] Heard both sides at length on the point of sentence. Gone
through the case record. It appears that, said matter is of year 2017.
Almost 7 years have been completed from the date of issuance of
cheque. Considering nature of offence, age of the accused, the period
since which case is pending and purpose of legislature behind
enactment of Section 138 of N.I. Act, in my view following order will
meets the ends of justice:
ORDER
i. The accused Mr. Sabir Rauf Mulla 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.
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ii. Accused is hereby sentenced to pay fine of Rs. 1,50,000/ for the
offence punishable U/s. 138 of N.I. Act. In default of payment of fine,
accused shall suffer simple imprisonment for the period of Six months.
iii. After recovery of fine amount of Rs. 1,50,000/, 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 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
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
the Code of Criminal Procedure, 1973.
vii. Dictated and pronounced in open court.
Sd/
Mumbai (K. G. Sawant)
Dt. 01/03/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 01/03/2024
Typed On : 01/03/2024
Signed On : 01/03/2024
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