Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 1170/SS/2018
CNR No. : MHMM19-003380-2018
Received On : 28/02/2018
Registered On : 28/02/2018
Decided On : 09/01/2025
Duration :Y-06, M-10 , D-11
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 1170/SS/2018 Exh. 57
Mr. Vinod Ramdas Diwakar.
Residing at Budha Galli No. 2,
Near Versova Post Office,
Versova Village, Andheri (W),
Mumbai – 400 061. -- Complainant
Versus
Mr. Peer Mohammed Shaikh.
Flat No. G-1, Ground Floor,
Manibai Niwas, Ferry Road,
Mandvi Galli, Versova Village,
Andheri (West), Mumbai – 4000 61.
And
Room No. 301, 3rd Floor, Bharmraj
Building, Opp. Thakur Dairy Farm,
Tere Galli No. 1, Versova, Andheri (W),
Mumbai – 400061. -- Accused
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OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Adv. Sandeep Diwakar for the complainant.
Adv. Mr. Rajesh Dubey for the accused.
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JUDGMENT
(Delivered on 09th of January 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 two cheques for total amount of Rs.
5,50,000/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, accused is a
developer and carrying on the business of building development. In the
year 2012, the complainant was searching for flat. Accused has
approached to complainant for sale of flat no. 01, situated at Ground
floor, Manibai Niwas, Kharde Galli, Versova village, Andheri (W). The
flat was fixed for a consideration of Rs. 6,60,000/- and agreement of
sale was signed by complainant and accused in the month of July 2013.
The complainant had paid Rs. 2,00,000/- in advance by cheque and Rs.
3,50,000/- by cash. In the month of January 2017, the complainant
had made follow up and accused promised and shown another property
for sale and new agreement for sale of flat no. 406, 4th floor, Munde
House, Buddha Galli, Versova, Andheri (W) was executed and again
complainant has paid Rs. 20,000/- for repair charges of the said flat.
Thereafter, the complainant came to know that, the said flat is already
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sold to one Kasim Shaikh on 09/09/2017. Therefore, complainant has
demanded refund of money paid by him to the accused.
03. Complainant has further submitted that, towards the
discharge of liability, the accused issued two cheques bearing cheque
No. 000257 dated 12/01/2018 for Rs. 2,00,000/- and cheque No.
000259 dated 22/01/2018 for Rs. 3,50,000/- drawn on ICICI Bank,
Versova Link Road Branch, Mumbai in favour of complainant.
Thereafter, the complainant deposited the above said cheques for
encashment in his New India Co-Operative Bank, Versova Branch,
Mumbai. The same were returned unpaid from drawee bank with
endorsement 'Funds Insufficient'. Accordingly, the New India Co-
Operative Bank issued memos dated 15/01/2018 and 25/01/2018
respectively. Thereafter, he contacted the accused and requested to pay
cheque amount but the accused intentionally not paid said amount.
Thereafter, he issued demand notice dated 08/02/2018 to accused. The
notice was returned as “Unclaimed”. 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. 16 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
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complainant in which he has raised following defences:-
a) The complainant has not proved that, the amount of
Rs. 5,50,000/- is paid by him to the accused.
b) The cheques were given as a security.
c) Accused is not liable to pay cheque amount as no
amount is outstanding 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.
52. In his statement U/s. 313 of the Code, accused has submitted that,
false complaint is filed against him.
07. Heard Ld. Advocate Shri. Sandeep Diwakar for
complainant and Ld. Advocate Shri. Rajesh Dubey for accused and also
perused and considered the written notes of argument filed by both
parties at Exh. 53 and 56.
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.
000257 (Exh. 23) and cheque no. 000259
(Exh. 24) were drawn by accused for legally
recoverable debt or other liability?
Yes.
2.
Does the complainant prove that the said
cheques returned unpaid for the reason No.
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“Funds Insufficient”?
3.
Does the complainant prove that he 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 his case, the complainant has filed his
evidence affidavit as a (C.W.1) at Exh. 08. The complainant also placed
his reliance upon following documents:
Description of documents Exhibit numbers
Verified copy of saving passbook Exh. 20
Agreement for sale Exh. 21 and 22
Original cheques Exh. 23 and 24
Cheque returned memos Article A and B
Office copy of demand notice Exh. 25
Returned envelope from the post along with
postal receipt affixed on it.
Exh. 26 to 29
Receipt of Courier Exh. 30 and 31
REASONS
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the complainant has filed his evidence affidavit as a (C.W.1) at
Exh. 08. As per his evidence, accused is a developer and carrying on
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the business of building development. In the year 2012, the
complainant was searching for flat. Accused has approached to
complainant for sale of flat no. 01, situated at Ground floor, Manibai
Niwas, Kharde Galli, Versova village, Andheri (W). The flat was fixed
for a consideration of Rs. 6,60,000/- and agreement of sale was signed
by complainant and accused in the month of July 2013. The
complainant had paid Rs. 2,00,000/- in advance by cheque and Rs.
3,50,000/- by cash. In the month of January 2017, the complainant
had made follow up and accused promised and shown another property
for sale and new agreement for sale of flat no. 406, 4th floor, Munde
House, Buddha Galli, Versova, Andheri (W) and again complainant has
paid Rs. 20,000/- for repair charges of the said flat. Thereafter, the
complainant came to know that, the said flat is already sold to one
Kasim Shaikh on 09/09/2017. Therefore, complainant has demanded
refund of money paid by him to the accused.
11. It has further came in his evidence that, towards the
discharge of liability, the accused issued two cheques bearing cheque
No. 000257 dated 12/01/2018 for Rs. 2,00,000/- and cheque No.
000259 dated 22/01/2018 for Rs. 3,50,000/- drawn on ICICI Bank,
Versova Link Road Branch, Mumbai in favour of complainant.
Thereafter, the complainant deposited the above said cheques for
encashment in his New India Co-Operative Bank, Versova Branch,
Mumbai. The same were returned unpaid from drawee bank with
endorsement 'Funds Insufficient'.
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12. The accused has conducted the cross-examination of the
complainant. In his cross-examination, the accused has raised defences
that,
a) The complainant has not proved that, the amount of
Rs. 5,50,000/- is paid by him to the accused.
b) The cheques were given as a security.
c) Accused is not liable to pay cheque amount as no
amount is outstanding 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”. I have perused decision of Hon’ble Supreme Court of
India in the case of Dashrathbhai Trikambhai Patel V/s. Hitesh
Mahendrabhai Patel & Anr, Criminal Appeal No. 1497 of 2022.
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
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the existence of legally enforceable debt or liability.
” In the present
case, the accused has not 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 cheques nor denied his signature on the cheques. Accused has
admitted the signature on the cheques as it is not denied by the
accused. Therefore, it can be gathered that, accused has not challenged
the signature from cheques (Exh. 23 and 24). This shows that, the
signature of accused from cheques (Exh. 23 and 24) 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.”
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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,
“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
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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”.
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 cheques
(Exh. 23 and 24), the presumptions under Section118 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
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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 the Code. In the present case, the
accused has conducted the cross-examination of complainant wherein
he raised defences that:-
a) The complainant has not proved that, the amount of
Rs. 5,50,000/- is paid by him to the accused.
b) The cheques were given as a security.
c) Accused is not liable to pay cheque amount as no
amount is outstanding against the accused.
The statement of accused under Section 313 of the Code is recorded
wherein he submitted that false complaint is filed against him.
19. So far as the first defence of the accused is concerned, the
accused has submitted that, the accused came with a defence that, the
complainant has not proved that, he has paid Rs. 2,00,000/- by cheque
and Rs. 3,50,000/- by cash. On the contrary, Ld. advocate for the
complainant submitted that, the complainant has paid in all Rs.
5,50,000/- i.e. Rs. 2,00,000/- by cheque and Rs. 3,50,000/- by cash. I
have perused the agreement for sale filed at Exh. 21 and as per the said
agreement, the Rs. 2,00,000/- is paid by the complainant to the accused
and Rs. 4,60,000/- was agreed to be paid. Later on another agreement
came to be executed between the parties which is filed at Exh. 22 and
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as per the said agreement, the complainant has to pay Rs. 12,00,000/-.
Ld. Advocate for the complainant submitted that, one receipt of Rs.
4,50,000/- is attached with the document filed at Exh 22 and as per the
said receipt, the accused has received Rs. 4,50,000/-. I have perused
the said receipt and it seems that, it bears signature of accused.
20. I have perused the cross-examination of the complainant in
which it has came on record that, the complainant has paid Rs.
2,00,000/- in advance by cheque as a token money and Rs. 3,50,000/-
by cash. It has further came in the cross-examination that, an amount
of Rs. 2,00,000/- was given before execution of agreement and Rs.
3,50,000/- was given after execution of agreement. It has further came
in the cross-examination that, till the execution of agreement at Exh.
22, he had paid an amount of Rs. 4,50,000/- and same is mentioned in
the agreement. It has further came in the cross-examination of the
complainant that, he had made total payment of Rs. 5,50,000/- to the
accused. These material came on record in the cross-examination of the
complainant itself. These material are important to prove that, the
payment was done by the complainant to the accused. The receipt
attached with document at Exh. 22 supports the contention of
complainant. Therefore, it can be held that, the complainant has paid
Rs. 5,50,000/- to the accused.
21. The accused came with another defence that, the disputed
cheques were given for security purpose and it was misused by the
complainant. I have perused the cross-examination of the complainant
where the accused has put a suggestion to complainant that the cheques
were given as a security but the complainant has denied the suggestion.
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Except the suggestion, nothing has been brought on record by the
accused to show that, the cheques were given by him to the
complainant as a security.
22. It is submitted by the accused that, the offence U/s. 420 of
I.P.C. was registered against the accused. In the said offence, the
settlement has taken place between parties as accused has paid entire
amount. I have perused the cross-examination of the complainant and
it seems that during the cross-examination, one settlement letter is
shown to the witness. The complainant has denied the said letter. It is
the submission of accused that, on the ground of settlement, the bail
was granted to the accused but the complainant has denied all these
suggestions.
23. In the case in hand, the complainant has shown that the
amount was paid by him. He has filed the statement of his account at
Exh. 20. I have perused the said statement and also perused the copies
of agreement for sale filed at Exh. 21 and 22. I have also perused the
receipt attached with Exh. 22 and perusal of these documents, it seems
that the amount is paid by the complainant to the accused.
24. As I discussed above the accused has not brought on record
any material by way of cross-examination or 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
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towards the legally enforceable debt. Hence, point No. 1 is answered in
the “affirmative”.
As to Point No. 2:-
25. As per contentions and evidence of complainant, the
cheque No. 000257 (Exh. 23) and cheque no. 000259 (Exh. 24) were
presented for encashment. However, the cheques were returned with
remark as 'Funds Insufficient’. In support of said contentions, the
complainant produced the cheque return memos (Article A and B). I
have perused 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”.
26. So, as per the aforesaid provision, the bank memo has
presumptive value but in the case in hand the complainant has filed
photocopy of bank memos which does not bear seal or signature of the
bank. The complainant has not taken any pain to prove these cheque
memos by producing the copy which bears seal and signature of the
bank nor taken pain to examine the banker to prove the cheque
returned memos filed at Article A and B. Further there is no certificate
issued under Section 65 (b) of Indian Evidence Act. In absence of proof
of these documents, these documents cannot be read in evidence. I have
also perused the statement of accused recorded U/s. 313 of the Code
and in that statement also, the accused has not admitted the fact of
dishonoured of cheque. Further the complainant has not produced the
bank statement to show that, the cheques were dishonoured. It is the
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duty of complainant to prove that, the cheques were dishonoured with
reason “Funds Insufficient” as mentioned in the complaint. I have
perused the decision of Hon’ble Bombay High Court, Nagpur Bench in
the case of Smt. Vandana W/o. Akhilesh Pandey V/s. Smt. Abhilasha
W/o. Anil Pande, Criminal Appeal No. 360 of 2017. It is observed in
para no. 13 that, “When the complainant (appellant in the present case)
asserted that the cheque was returned or dishonoured, it was for her to
prove this basic fact. Section 146 of the said Act provides that if the
complainant places on record a slip or memo issued by the bank having
official mark of the bank thereon, denoting that the cheque was
dishonoured, it would be presumed that such cheque was dishonoured
until such fact was disproved. Thus, if such a document was placed on
record by the appellant in the present case, it would constitute prima
facie evidence of dishonour of cheque and burden would have been
entirely on the respondent to disprove such a fact. But, when the memo
produced in the present case by the appellant did not bear official mark
of the bank, there was no document as contemplated under Section 146
of the said Act to presume that the fact of dishonour of cheque had been
proved by the appellant. The burden continued to lie on the appellant
to prove the basic fact of dishonour of cheque, in the facts and
circumstances of the present case.”. In the case in hand also, the
complainant has not proved the fact that, cheques were dishonoured by
reason “Funds Insufficient” as mentioned in the complaint and evidence
affidavit. Therefore, in the case in hand, the complainant has not
proved that, the cheques at Exh. 23 and 24 are dishonoured with reason
“Funds Insufficient”. Consequently, point No. 2 is answered in the
“Negative”.
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As to Point Nos. 3 and 4 :-
27. As per evidence of (C.W.1), after dishonor of cheques
(Exh. 23 and 24), he issued demand notice dated 08/02/2018
(Exh.25). The complainant has filed returned envelopes at Exh. 26 to
29 to show that, the notice was returned ‘Unclaimed’. In support of said
contention, the complainant produced demand notice dated
08/02/2018 (Exh. 25) and returned envelopes (Exh. 26 to 29). Upon
perusal of demand notice (Exh. 25), returned envelopes (Exh. 26 to
29), it is seen that, the complainant issued demand notice on
08/02/2018 to the accused and same was returned unclaimed. The
demand notice was sent on the following address :-
To,
Mr. Peer Mohammed Shaikh.
Flat No. G-1, Ground Floor,
Manibai Niwas, Ferry Road,
Mandvi Galli, Versova Village,
Andheri (West), Mumbai – 400061.
And
Room No. 301, 3rd Floor, Opp. Thakur Dairy Farm,
Tere Galli No. 1, Versova, Andheri (W),
Mumbai – 400061.
28. Accused nowhere challenged his aforesaid residential
address. It seems from the returned envelopes at Exh. 26 to 29 that, the
said notice was delivered on the correct address of accused. 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,
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“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
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
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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
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.
29. As already discussed in earlier points, it becomes clear that
the subject cheques (Exh. 23 and 24) were dishonored on 15/01/2018
and 25/01/2018 for the reason of ‘Funds Insufficient’. It is seen from
the record that, the notice (Exh. 25) was returned unclaimed on
10/02/2018 to the accused and so, it is seen to be sent within 30 days
of dishonor of cheques. As discussed earlier, notice was duly served
upon the accused. 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 :
30. The notice (Exh. 25) was sent on 08/02/2018 and so, it is
seen to be issued within 30 days of alleged dishonor of cheques (Exh.
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19 C. C. NO. 1170/SS/2018
CNR No. : MHMM19-003380-2018
23 and 24). Therefore, the accused has to pay cheque amount within
fifteen days from 10/02/2018 but accused failed to pay it. Therefore,
the cause of action for this complaint was arose on 26/02/2018. The
complainant has to file complaint with 30 days from the day of cause of
action. The complaint was filed on 28/02/2018. Therefore, the
complaint is seen to be filed within limitation. Though the complaint is
filed within limitation, but while discussing point no. 2 I hold that, the
complainant has failed to prove the essential ingredients of the offence
punishable u/s 138 of the Act. As already discussed in earlier points, it
becomes clear that, the complainant has failed to prove the dishonour
of cheques as the cheque memos are not proved nor the complainant
has taken pain to examine the banker.
31. In the case in hand, while discussing point no. 2 I held that,
it becomes clear that, the complainant has failed to prove the dishonour
of cheques as the cheque memos are not proved nor the complainant
has taken pain to examine the banker. Therefore, though the
complainant has proved the legally enforceable debt, then also the
complainant has failed to prove dishonour of cheques. 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:
32. In view of entire evidence of the complainant, he has failed
to prove that, accused has committed an offence punishable u/s 138 of
the Act. Ld. advocate for the accused submitted that, accused is
entitled for acquittal. Consequently, point No. 2 and 5 are answered in
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20 C. C. NO. 1170/SS/2018
CNR No. : MHMM19-003380-2018
the “Negative”. Resultantly, following order is passed:
ORDER
1. The accused Mr. Peer Mohammed Shaikh is hereby
acquitted under Section 255 (1) of the Criminal
Procedure Code, 1973 for an offence punishable
under Section 138 of the Negotiable Instrument
Act,1881.
2. The bail bonds of accused stands canceled.
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:- 09/01/2025 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 09/01/2025
Typed On : 09/01/2025
Signed On : 09/01/2025
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