Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 1121/SS/2018
CNR No. : MHMM19-003367-2018
Received On : 27/02/2018
Registered On : 27/02/2018
Decided On : 12/02/2025
Duration :Y-06, M-11, D-13
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 1121/SS/2018 Exh.61
Seema Singh Pillai.
Aged about 56 years, Occu : Housewife
R/o. O-541, 10th Floor, tarapore Towers,
Oshiwara, Andheri (West),
Mumbai – 400 053 -- Complainant
Versus
Mr. Sidhartha Basudev Srivastava.
Age About 67 years, Occu : Tutor
R/o. A – 1702, Whispering Heights,
Chincholi Bunder, Mindspace,
Malad (West), Mumbai – 400 064. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Adv. Mr. Robin Nazareth for the complainant.
Adv. Mr. S. P. Shrivastav for the accused.
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JUDGMENT
(Delivered on 12th of February 2025)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“the Act” for short) for dishonor of a cheque for an amount of Rs.
2,50,000/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, she knows the
accused as accused used to come to her residence for tuition of her
daughter from the month of September 2016. She used to pay tuition
fees to the accused. Accused used to borrow money from her. In the
month of November 2016, the accused has taken Rs. 50,000/- cash
from the complainant and issued cheque no. 120946 dated 21/05/2017
of Dhanlaxmi Bank, New Delhi, Janakipuri branch. Thereafter, in the
month of March 2017, accused had taken Rs. 70,000/- from her and
again in the same month, the accused has taken Rs. 1,00,000/- from
her. Accused did not issued any receipt. Accused again asked for
financial help of Rs. 80,000/- from her. Accused has issued one cheque
of Rs. 1,00,000/- bearing no. 120950 dated 18/09/2017 of Dhanlaxmi
Bank. The said cheque was deposited for encashment but it was
returned on 15/12/2017. The accused has admitted that, he has
received the money from her. Accused admitted that, he will clear all
the debt. The accused all of sudden stopped coming for tuition from
the first week of October 2017. Complainant has asked for the due
amount from the accused.
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03. Complainant has further submitted that, towards the part
payment of the money borrowed from accused, accused issued a cheque
bearings no. 848422 dated 08/11/2017 for an amount of Rs. 2,50,000/-
drawn on Dhanlaxmi Bank, New Delhi Branch in her favour. Thereafter,
she deposited the above said cheque for encashment in her bank namely
Dena Bank, Lokhandwala Complex, Andheri (West) branch, Mumbai.
The same was returned unpaid from drawee bank with endorsement
‘Payment stopped by drawer’. Accordingly, the Dena Bank issued memo
dated 15/12/2017. Thereafter, she contacted the accused and requested
to pay cheque amount but the accused intentionally not paid said
amount. Thereafter, she issued demand notice dated 11/01/2018 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.
04. 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. 08 which
were read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
05. Accused has conducted the cross-examination of the
complainant in which he has raised following defences:-
a) The accused has booked online ticket for
complainant, her husband and daughter.
b) The complainant has given an amount of Rs.
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2,50,000/- for repayment of expenses incurred by
accused for the foreign trip of complainant.
c) The tuition fees is due from the complainant.
d) The cheque was forcibly taken by the complainant
and for the same he has filed complaint with the
police.
e) No any cheque amount due against the accused.
06. The statement of accused under Section 313 of the Code of
Criminal Procedure, 1972 (in short 'the Code') was recorded vide Exh.
29. In his statement U/s. 313 of the Code, accused has submitted that,
he had incurred expenses for traveling of complainant and when he
asked for tuition fees and return of said money then the complainant
threatened him to file false complaint.
07. Heard Ld. Advocate Shri. Robin Nazareth for complainant
and Ld. Advocate Shri. S. P. Shrivastav for accused and also perused
and considered the written notes of argument filed by both parties at
Exh. 56 and 57.
08. From perusal of complaint, record and defence of the
accused, 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.
848422 (Exh. 16) was drawn by accused for No.
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legally recoverable debt or other liability?
2.
Does the complainant prove that the said
cheque returned unpaid for the reason
“Payment stopped by drawer”?
Yes.
3.
Does the complainant prove that she had
issued demand notice to the accused within
limitation demanding cheque amount?
Yes.
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 Instruments Act ?
No.
6. What order? The accused
is acquitted.
09. In order to prove her case, the complainant has filed her
evidence affidavit as a (C.W.1) at Exh. 12. The complainant has also
placed her reliance upon following documents:
Description of documents Exhibit numbers
Whatsapp Chat Article-A
Three original cheques Exh. 14 to 16
Two cheque returned memos Exh. 17 and 18
Original receipt dated 20/11/2017 Exh. 19
Demand notice Exh. 20
Postal receipt Exh. 21
A. D. card Exh. 22
Reply from accused Exh. 23
Accused has filed his evidence affidavit as a D.W.1 as per Exh. 33.
The accused also placed his reliance upon following documents:
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Description of documents Exhibit numbers
Statement of bank account Exh. 36
Make my trip ticket with bank statement Exh. 37
Print out of e-mails Exh. 38 and 39
Print out of payment receipt Exh. 40
Visa related summary Exh. 41
E-mail dated 27/04/2017 Exh. 42 to 44
Hotel booking, Swiss pass and bank
statement
Exh. 45 (Colly)
Email of commissioner of police and
acknowledgment
Exh. 46
Copy of FIR Exh. 47
Copy of order in Cri. Rev. Appln. No.
176/2018
Exh. 48
Certificate U/s. 65 (B) Exh. 49
REASONS
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the complainant has filed her evidence affidavit as a (C.W.1)
at Exh. 12. As per her evidence, she knows the accused as accused used
to come to her residence for tuition of her daughter for the month of
September 2016. She used to pay tuition fees to the accused. Accused
used to borrow money from her. In the month of November 2016, the
accused has taken Rs. 50,000/- cash from the complainant and issued
cheque no. 120946 dated 21/05/2017 of Dhanlaxmi Bank, New Delhi,
Janakipuri branch. Thereafter, in the month of March 2017, accused
had taken Rs. 70,000/- from her and again in the same month, the
accused has taken Rs. 1,00,000/- from her. Accused did not issued any
receipt. Accused again asked for financial help of Rs. 80,000/- from
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her. Accused has issued one cheque of Rs. 1,00,000/- bearing no.
120950 dated 18/09/2017 of Dhanlaxmi Bank. The said cheque was
deposited for encashment but it was returned on 15/12/2017. The
accused has admitted that, he has received the money from her.
Accused admitted that, he will clear all the debt. The accused all of
sudden stopped coming for tuition for the first week of October 2017.
Complainant has asked for the due amount from the accused.
11. It has further came in her evidence that, towards the part
payment of the money borrowed from accused, accused issued a cheque
bear no. 848422 dated 08/11/2017 for an amount of Rs. 2,50,000/-
drawn on Dhanlaxmi Bank, New Delhi Branch in her favour. Thereafter,
she deposited the above said cheque for encashment in her bank namely
Dena Bank, Lokhandwala Complex, Andheri (West) branch, Mumbai.
The same was returned unpaid from drawee bank with endorsement
‘Payment stopped by drawer’.
12. The accused has conducted the cross-examination of the
complainant. In his cross-examination, the accused has raised defences
that,
a) The accused has booked online ticket for
complainant, her husband and daughter.
b) The complainant has given an amount of Rs.
2,50,000/- for repayment of expenses incurred by
accused for the foreign trip of complainant.
c) The tuition fees is due from the complainant.
d) The cheque was forcibly taken by the complainant
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and for the same he has filed complaint with the
police.
e) No any cheque amount due against the accused.
13. Before adverting towards of the merit of case, it is
necessary to deal with some legal principle 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”.
14. 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 sent reply to the demand notice of the
complainant. The accused has conducted the cross-examination of the
complainant. I have minutely perused the cross-examination of the
complainant and it seems that, the accused has not denied the issuance
of cheque nor denied his signature on the cheque. Accused has admitted
the signature on the cheque as it is not denied by the accused.
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Therefore, it can be gathered that, accused has not challenged the
signature from cheque (Exh. 16). This shows that, the signature of
accused from cheque (Exh. 16) is not in dispute. Therefore, the
presumptions under Section 118 and 139 of the Act are raised in favor
of complainant.
15. 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
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.”
16. 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 has laid down the procedure as
to how the accused can rebut the presumption under Section118 and
139 of the Act,
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“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
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
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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”.
17. 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
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.”
18
. As accused has not challenged his signature on the cheque
(Exh. 16), 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, her own testimony or of other witnesses, if cross examined
and also through statement of accused recorded under section 313 of
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the Code. In the present case, the accused has conducted the cross-
examination of complainant wherein he raised defences that:-
a) The accused has booked online ticket for
complainant, her husband and daughter.
b) The complainant has given an amount of Rs.
2,50,000/- for repayment of expenses incurred by
accused for the foreign trip of complainant and
tuition fees of her daughter.
c) The tuition fees is due from the complainant.
d) The cheque was forcibly taken by the complainant
and for the same he has filed complaint with the
police.
e) No any cheque amount due against the accused.
The statement of accused under Section 313 of the Code is recorded
wherein he submitted that he had incurred expenses for traveling of
complainant and when he asked for tuition fees and return of said
money then the complainant threatened him to file false complaint.
19. So far as the first defence of the accused is concerned, the
accused has submitted that, the complainant had planned a trip to
Switzerland and France and the accused had arranged the passport and
the air tickets. As per his submission, the accused has booked the Air
ticket and booked hotel at Paris and also beared expenses of Rs.
1,55,000/-. The complainant has paid Rs. 70,000/-, out of total Rs.
1,55,000/-. Ld. Advocate for the complainant submitted that, the
complainant has paid total amount to the accused. He invited my
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attention towards the email dated 17/04/2017 sent by accused to the
complainant. I have perused the said email which is filed at Exh. 55
and perusal of it seems that, the total expenditure of passport, Paris
Hotel and Air ticket, train/bus expenses of Rs. 1,55,000/- is mentioned
and it is also mentioned that, he has received Rs. 70,000/- and an
amount of Rs. 85,000/- is outstanding out of total expenditure. Ld.
Advocate for the complainant further invited my attention towards the
cross-examination of the accused wherein he admitted that, he had sent
email dated 17/04/2017 (Exh. 55) to the complainant. He further
admitted that, in the said email, he has further mentioned that, balance
required is of Rs. 85,000/- and thereafter he had not sent any email to
the complainant because he has received the entire amount and no any
outstanding amount due against the complainant against the expenses
of tour.
20. Perusal of above discussion, it seems that, the complainant
has paid the total amount of Rs. 1,55,000/- of tour expenses which was
beared by the accused. Ld. advocate for the accused submitted that, the
complainant had paid Rs. 1,55,000/- to the accused which was due for
the tour expenses. It is the submission of Ld. advocate for the accused
that, the complainant has not disclosed the fact that, the accused has
incurred tour expenses of the complainant. Ld. Advocate for the
complainant submitted that, the complainant has given total amount of
Rs. 4,00,000/- to the accused and out of that, only Rs. 1,55,000/- is
paid by the accused to the complainant and amount of Rs. 2,50,000/- is
due from the accused.
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21. The accused came with a defence that, he has beared tour
expenses of complainant and beared expenses of Rs. 1,55,000/-. This
fact is proved by the accused which was not disclosed by the
complainant in the complaint. It is admitted fact that, the presumption
U/s. 118 and 139 of N.I. Act is in favour of complainant and the onus is
on the accused to show the probable defence by applying the principle
of preponderance of probabilities. In the case in hand, as per my view,
the accused has shown the probable defence as he has incurred the tour
expenses of Rs. 1,55,000/-. Though it has came on record that, the
complainant has paid the tour expenses beared by accused of Rs.
1,55,000/- then the burden shifts on the complainant to show and
prove that, there was separate transaction of Rs. 2,50,000/- and she has
paid Rs. 2,50,000/- to the accused.
22. Ld. advocate for the complainant submitted that, the
accused has admitted in the statement recorded before Bangur Nagar
Police U/s. 161 of the Code of Criminal Procedure that, the complainant
has given Rs. 1,00,000/- through cheque in the name of his wife. Ld.
Advocate for the complainant submitted that, the complainant has given
Rs. 2,50,000/- as well as the above admitted amount of Rs.1,00,000/-
to the accused. The statement recorded by the police U/s. 161 of the
Code of Criminal Procedure is only relevant for the Section 145 of
Indian Evidence Act. Therefore, on the basis of statement U/s. 161 of
the Code of Criminal Procedure it cannot be held that, the complainant
has given Rs. 1,00,000/- to the wife of accused.
23. Ld. advocate for the accused has submitted that, the
complainant has not paid the tuition fees of her daughter. It is his
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submission that, for the 13 months tuition fees is outstanding against
the complainant. It is his submission that, an amount of Rs. 15,000/-
per month was fixed as a tuition fees. Ld. Advocate for the complainant
submitted that, the complainant has paid the entire tuition fees and no
any amount is due. I have perused the cross-examination of the
complainant wherein he admitted that, the accused had taken tuition of
her daughter for the period of 8-9 months. In a cross-examination, the
suggestion was put to her by the accused that, an amount of Rs.
1,95,000/- is due for a tuition fee but the complainant has denied the
said suggestion. Nothing has been brought on record by both the
parties to show that, whether the tuition fee is paid or not.
24. Ld. Advocate for the accused submitted that, the cheque
filed at Exh. 16 had taken by the complainant by extending threat to the
accused. It is his submission that, on 25/10/2017, the complainant and
her husband had been to the house of accused and forcibly obtained the
disputed cheque. It is further submitted by the accused that, he had
filed complaint with Bangur Nagar Police Station. The copy of said
complaint is filed on record, it is at Exh. 47. Ld. Advocate for the
complainant submitted that, the Bangur Nagar Police Station has filed
its report and in that report, it has been specifically mentioned that,
there are many money transactions between complainant and accused
and no such offence has taken place. It is admitted fact that, the said
report yet to be accepted by the concerned court.
25. In the case in hand, it seems from the above discussion
that, the accused and complainant has not brought on record any
material to show that, whether the tuition fee is paid or not. Further,
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the complainant has filed the photocopy of the report submitted by
Bangur Nagar Police Station in the complaint filed by the present
accused wherein it is mentioned that, there are many money
transactions between complainant and accused and no such offence has
taken place. It is admitted fact that, the said report yet to be accepted
by the concerned court. So far as, the tour expenses beared by the
accused is concerned, it has been came on record that, accused has
incurred tour expenses of Rs. 1,55,000/- and said amount is repaid by
the complainant to the accused. But the complainant has not disclosed
this fact in the complaint and the accused came with a defence that, he
beared the tour expenses of the complainant and spend Rs. 1,55,000/-.
It is the submission of Ld. Advocate for the accused that, the
complainant has paid the said amount and there was no any other
transaction. Admittedly, it seems from the above discussion that, the
accused has shown the probable defence that, he has incurred tour
expenses of Rs. 1,55,000/- of complainant and the complainant has
repaid the same. Therefore, the burden shift on the complainant to
show and prove that, she has paid Rs. 2,50,000/- and the said amount
was paid as a separate transaction and the said amount is not
concerned with the tour expenses. In the case in hand, as I discussed
the complainant has not discharge the said burden and has not proved
that, the amount of Rs. 2,50,000/- was paid and it was paid for separate
transaction.
26. Accused submitted that, he has not liable to pay the cheque
amount. As I discussed above, the accused has beared the tour
expenses of Rs. 1,55,000/- of the complainant, the complainant has
paid the said amount. The complainant has not discharge her burden to
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prove that, the amount of Rs. 2,50,000/- was paid and the said amount
was paid for separate transaction. If we calculate the paid amount from
the outstanding amount, then the cheque amount does not remains to
be paid by the accused. I have perused the decision of Hon’ble Supreme
Court of India, in Dashrathbhai Trikambhai Patel V/s. Hitesh
Mahendrabhai Patel and Anr., 2022 ALL SCR (Cri) 2097
“Under S. 56 read with S.15 of the Act, an endorsement may be
made by recording the part-payment of the debt in the cheque or
in a note appended to the cheque. When such an endorsement is
made, the instrument could still be used to negotiate the balance
amount. If the endorsed cheque when presented for encashment
of the balance amount is dishonoured, then the drawee can take
recourse to the provisions of S. 138. Thus, when a part-payment
of the debt is made after the cheque was drawn under S. 56 of
the Act. The cheque cannot be presented for encashment without
recording the part-payment. If the unedorsed cheque is
dishonoured on presentation, the offence u/S. 138 would not be
attracted since the cheque does not on presentation, the offence
u/S. 138 would not be attracted since the cheque does not
represent a legally enforceable debt at the time of encashment.”
27. Perusal of the above decision it seems that, on the date of
presentation of cheque for encashment, there must be legally
enforceable debt due from the accused. In the case in hand, as I
discussed above, the accused has shown his probable defence and again
the burden shifts on the complainant to show that, the amount of Rs.
2,50,000/- was given by her to accused and it was given for separate
transaction. The accused succeed to brought on record that he has
beared tour expenses of Rs. 1,55,000/- which is repaid by the
complainant. The time period of paying of amount is required to be
considered. As per the case of complainant that, the amount is given in
the month November 2016, March 2017 and April 2017. The tour
period of the complainant is also in the year 2016 and 2017. Further,
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the email dated 17/04/2017 is at Exh. 55 is also material and as per the
said email, the amount of Rs. 1,55,000- is beared by the accused and he
has received Rs. 70,000/- and Rs. 85,000/- was due, but in the cross-
examination it has came on record that, he received entire amount of
tour expenses. Therefore, it seems that, the said amount was given for
tour expenses and the complainant has not proved the separate
transaction of Rs. 2,50,000/- by excluding the amount of tour expenses
i.e. Rs. 1,55,000/-. Therefore, the ratio laid down by Hon’ble Supreme
Court of India in the case of Dasharathbhai Patel’s case (cited supra) is
squarely applicable to the present case.
28. In the case in hand, as I discussed above the accused has
brought on record material by way of cross-examination and rebutted
the presumption. Therefore, it becomes clear that the accused has
succeed to rebut the presumption raised under Section 118 & 139 of the
Act. Therefore, I hold that the complainant has failed to prove 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 “Negative”.
As to Point No. 2:-
29. As per contentions and evidence of complainant, the
cheque No. 848422 (Exh. 16) was presented for encashment. However,
the cheque was returned with remark as ‘Payment stopped by drawer’.
In support of said contentions, the complainant has produced the
cheque return memo (Exh. 18). It is seen from the bank memo (Exh.
18) that, the cheque was returned with endorsement 'Payment stopped
by drawer’. The memo (Exh. 18) bears seal and signature of concerned
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bank. Therefore, here it is necessary to mention Section 146 of the
Negotiable Instruments Act;
“
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 dishonored, presume the fact of dishonor of
such cheque, unless and until such fact is disproved”.
30. So, as per the aforesaid provision, the bank memo (Exh.
18), is having presumptive value as per Section 146 of the N.I Act.
Admittedly, the said presumption is rebuttable. However, nothing is
brought on record by the accused to rebut the presumption in respect of
bank memo (Exh.18). After perusal of said memo, it is seen that the
cheque No. 848422 (Exh. 16) was dishonored for reason 'Payment
stopped by drawer’. However, nothing is 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 dishonored with reason
'Payment stopped by drawer’. Consequently, point No. 2 is answered in
the “affirmative”.
As to Point Nos. 3 and 4 :-
31. As per evidence of Seema Singh Pillai (C.W.1), after
dishonor of cheque of Rs. 2,50,000/- (Exh. 16), she issued demand
notice dated 11/01/2018 (Exh. 20). The said notice is served on the
accused. The accused has sent reply to demand notice at Exh. 23 and
perusal of said reply, it seems that, the demand notice was served on the
accused.
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32. Therefore, there is no hurdle to held that, accused has
received the demand notice. Therefore, in matter in hand, the
compliance of Section 138(b) of the Act stands complied with by the
complainant.
33. As already discussed in earlier points, it becomes clear that
the subject cheque (Exh. 16) was dishonored on 15/12/2017 for the
reason of 'Payment stopped by the drawer'. It is seen from the record
that, the notice (Exh. 20) was delivered on 15/01/2018 to the accused
and so, it is seen to be sent within 30 days of dishonor of cheque. As
discussed earlier, the accused has sent reply notice on 23/01/2018. 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 :
34. As already discussed in earlier points, it becomes clear
from memo (Exh. 18) that the cheque (Exh. 16) was dishonored on
15/12/2017. The notice (Exh. 20) was sent on 11/01/2018 and so, it is
seen to be issued within 30 days of dishonor of cheque (Exh. 16).
Therefore, the accused has to pay cheque amount within fifteen days
from 15/01/2018 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 31/01/2018. The complainant
has to file complaint with 30 days from the day of cause of action. The
complaint was filed on 27/02/2018. Therefore, the complaint is seen to
be filed within limitation.
35. In the case in hand, while discussing point no. 1 I held that,
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the accused has rebutted the presumptions available under Section 118
and 139 of the Act. Therefore, though the complaint is filed within
limitation, then also the complainant has failed to prove the legally
enforceable debt due against the accused. Therefore, the complainant
has failed to prove that, the accused has committed an offence
punishable u/s 138 of the Act. Consequently, point No. 5 is answered in
the “negative”.
As to Point No.6:
36. In view of entire evidence of the complainant, she has
failed to prove her case and accused succeed to rebut presumptions
available under Section 118 and 139 of the Act, it becomes clear that
the complainant has failed to prove that, accused has committed an
offence punishable u/s 138 of the Act. Ld. advocate for the accused
submitted that, once the accused succeeded in rebutting the
presumption available with complainant U/s. 118 and 139 of N. I. Act,
then accused is entitled for acquittal. Consequently, point No. 1 and 5
are answered in the “Negative”. Resultantly, following order is passed:
ORDER
1. The accused Mr. Sidhartha Basudev Srivastava is
hereby acquitted under Section 255 (1) of the
Criminal Procedure Code, 1973 for an offence
punishable under Section 138 of the Negotiable
Instruments Act,1881.
2. The bail bonds of accused stands canceled.
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3. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
4. Accused is hereby directed to furnish personal bond
of Rs. 15,000/- and surety of like amount to appear
before Hon'ble Appellate Court, in case of appeal filed
by the prosecution, according to Section 437-A of the
Code of Criminal Procedure, 1973.
(Dictated & Pronounced in the open court)
Mumbai (Y. P. Pujari )
Date:- 12/02/2025 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 12/02/2025
Typed On : 12/02/2025
Signed On : 12/02/2025
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