Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.1421/SS/2018
Filed on : 16/03/2018
Registered on : 16/03/2018
Decided on : 06/05/2024
Duration : 06 Y. 01 M. 20 D
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 1421/SS/2018
CNR: MHMM19-003645-2018
Exh. No.
M/s. Dhaval Engg. Co.
having their address at 9/14,
Juhu Gaurav, Gulmohar Cross Road,
No.11, J.V.P.D. Scheme, Juhu,
Mumbai-400049
through the Constituted Attorney
Mr. Bhupendra N. Damania …Complainant
Versus
1. M/s. Amritlal & Associates
Sun Industrial Estate,
117, 1st Floor, Sun Mill Compound,
Lower Parel, Mumbai-400 013.
2. Mr. Hiralal (Pappu) Mistry
(Process not issued)
3. Mr. Manoj Mistry
of M/s. Amritlal & Associates
Sun Industrial Estate,
117, 1st Floor, Sun Mill Compound,
Lower Parel, Mumbai-400 013.
4. Mr. Devendra Mistry
(Process not issued) ...Accused
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2 C. C. No.1421/SS/2018
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate – Smt. Leena Fernandes for the complainant
Advocate – Shri. Divakar Gond for accused.
JUDGMENT	JUDGMENT
(Delivered on 06/05/2024)
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.)
Bonsai facts of the complaint are as under :
2] It is the case of complainant that, complainant is a private
limited company filed this complaint through constituted attorney
namely Bhupendra Damania. Accused no. 1 had undertaken interior
decoration work and used to place the orders with the complainant as
per his requirement. Accordingly, complainant carried out entire work
for total amount of Rs. 18,08,518/-. In order to pay said amount,
accused issued 6 cheques for total amount of Rs. 14,45,000/- and same
were cleared. For balance amount, accused issued following three
cheques for an amount of Rs.3,78,381/-:
Sr.
No.
Cheque No. Date Amount Drawn on
1 023461 16/12/2017 Rs.1,26,127/- Dena Bank
2 023462 26/12/2017 Rs.1,26,127/- Dena Bank
3 023463 10/01/2018 Rs.1,26,127/- Dena Bank
3] Complainant presented these cheques for clearance with its
banker. However, all three cheques returned unpaid with remark
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“Exceeds arrangement norms” vide memo dated 11/01/2018.
4] After dishonor of cheques, complainant issued statutory
demand notice to accused on 01/02/2018 by RPAD, calling upon
accused to pay the cheque amount, within stipulated time. Notice was
duly served upon accused. As amount claimed in notice, was not paid
by the accused, complainant left with no other option than to knock the
door of the court seeking justice and
ipso Jure case came before this
court, which was filed on 16/03/2018.
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
his representative Bhupendra Damania (C.W. 1) by filing his affidavit in
lieu of examination-in-chief at Exh. 15, vide section 145 of the
Negotiable Instrument Act. Besides oral evidence, complainant has
relied upon following documentary evidence that includes:
Description of documents Exh. No.
Power of Attorney Exh.23
Quotation placed by Complainant through
email and work done details filed at Serial
Nos.2 to 8
Article-A collectively
Original Cheques Exh.24 & 25
Cheque returned memos Exh.26 & 27
Request letter dated 28/07/2017 Exh.28
Summary of bill raised dated 17/05/2017 Exh.29
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Xerox copy of cheque issued by accused to
the complainant
Article-B
Ledger Account Exh.30
Tax invoice Exh.31 to 34
Total 10 tax invoices filed at Serial No.22 Article-C Collectively
Original disputed Cheques Exh.35 to 37
Cheque returned memos Exh.38
Office copy of notice Exh.39
Postal Receipt Exh.40 to 43
7] After completion of complainant's evidence, statement of
accused U/s. 313 of Cr.P.C. was recorded at Exh. No. 53, wherein
accused has denied his liability to pay cheque amount.
8] Heard Ld. Advocate for both parties at length. In view of
accusation and argument of both parties, 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
Negative
2. Does complainant prove that cheques were
returned unpaid for reason “Exceeds
arrangement norms”?
….
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 demand
notice is valid, legal and is inconformity with
Section 138 of Negotiable Instruments Act ?
In the
Negative
5. 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
6. Whether complaint is filed within period of
limitation? …. In the
Negative
7. What order ?
…. Accused are
Acquitted.
REASONS
AS TO POINT NO. 1:
9] The accused are 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
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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.
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. 118-Presumptions 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
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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
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.
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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
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
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applicable to the accused whenever accused is required to prove a fact.
12] In order to prove their case, complainant examined their
representative Bhupendra Damania by filing his affidavit of
examination-in-chief at Exh. 15, wherein he has reiterated case from the
complaint. His evidence shows that, complainant company had done
work for accused and raised invoices for total amount of Rs.
18,08,518/-. His evidence further shows that, finally an amount of Rs.
5,11,060/- was balance against accused and in order to pay said
amount, disputed three cheques were issued by the accused. In
support of his evidence, he has produced on record original cheques, tax
invoices, ledger account etc.
13] Ld. Advocate for accused conducted cross-examination of
complainant at length and taken following defences:-
i) Mr. Manoj Mistri is not the partner of accused no.1 and hence
he is not at all liable to pay cheque amount.
ii) Entire transaction was taken place between complainant and one
Hiralal Mistri.
iii) Amount claimed in the demand notice is excess than the cheque
amount and thus notice is bad in law.
14] Considering oral and documentary evidence on record it
appears that, transaction has taken place between complainant and
accused firm. It also appears that, accused firm was liable to pay
cheque amount to the complainant. In cross-examination, accused has
not denied transaction but entire cross-examination is on the point of
liability of Mr. Manoj Mistri to pay the cheque amount. Complainant
has admitted in cross-examination that, he has not produced any
document to show that, who were the partners of accused no. 1.
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According to complainant, accused no. 4 (no process issued against
him.) used to issue cheques to the complainant company. He further
admitted that, said work order was given to the complainant by Hiralal
Mistri. He further stated that, entire transaction was taken place
between him and Hiralal Mistri. He further admitted that, accused no.
2 Manoj Mistri was not the partner of accused no. 1 firm. It is necessary
to note here that, process was issued against accused no. 1 and said
Manoj Mistri only. However, as admitted by Mr. Bhupendra Damania
(C.W.1), Mr. Manoj Mistri was not involved in this transaction and he
was not the partner of accused no. 1.
15] Here, learned advocate for complainant argued that as per
judgment passed by the Hon'ble Supreme Court in the case of Rangappa
V/s. Sri Mohan [(2011)1 SCC (Cri.)184], burden is on accused to show
that cheque was not issued for discharging legal enforceable liability.
She further argued that accused was not the partner, it was for him to
challenge the issue process order. She further argued that accused kept
silence till cross-examination. At the time of filing of complaint,
complainant had no knowledge that accused is not the partner.
16] On the other hand, learned advocate for accused argued
that accused can prove his defence through cross-examination of
complainant. He further stated that if accused is not at all involved in
this transaction, he cannot be held guilty for offence under Section 138
of N.I. Act.
17] Having heard both parties at length and admission given by
the complainant, it becomes clear that Mr. Manoj Mistry was not
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involved in this transaction. Here learned advocate for accused has
relied upon judgment passed by the Hon'ble Supreme Court in the case
of S.P. Mani and Mohan Dairy V/s. Snehalata Elangovan [Decided in
Criminal Appeal No.1586/2022] wherein in Para No.27 the Hon'ble
Supreme Court has observed as under :
27. As for the requisite evidence, the burden upon the prosecution would
be discharged under subsection (1) when a person is proved to be in
charge of and responsible to the company in the conduct of its business
and would shift upon the accused to prove that he was ignorant or
diligent, if that be his defence; whereas under subsection (2) the
prosecution would be required to allege and prove the consent,
connivance or neglect and holding of the office by the accused. There is
nothing to suggest that the same person cannot be made to face the
prosecution either under subsection (1) or subsection (2) or both. A
director or manager can be arraigned and proved to be guilty as the
person in charge of and responsible to the company as well as the
director of the company who, as such, might have consented to,
connived at or been negligent in respect of the offence of dishonour of
cheque, be logically deduced that a person can be arraigned in a
complaint as the accused along with the company if it prima facie
appears that he was in charge of and responsible to the company for the
conduct of its business, although he may or may not be or may not have
continued to be a director or other officer of the company, as mentioned
in sub section (2). It would be sufficient if the complaint indicates that
such person has been arraigned on the basis of averments which disclose
him or her to be the person in charge of and responsible to the company
in the conduct of its business at the time the offence was committed.
Evidently, a person who signs the cheque or who has the authority to
sign the cheque for and on behalf of the company, regardless of his office
or capacity, can, prima facie, be assumed to be in charge of and
responsible to the company in the conduct of its business. And, where
such person is prosecuted, then, if it be his defence that the offence was
committed without his or her knowledge or that he or she has exercised
all due diligence to prevent the commission of such offence, the burden
to prove that would be on him or her and can only be discharged at the
stage of evidence.
18] Thus, from perusal of above observation it becomes clear
that the person signs the cheque, it can be presumed that he was
incharge and responsible for the business of company. It is further
observed by the court that, if it is the defence taken by such person that,
offence was committed without his/ her knowledge or that he / she has
exercised all due diligence to prevent the commission of such offence,
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the burden to prove that would be on him or her and can only be
discharged at the stage of evidence.
19] He also relied upon judgment passed by the Hon'ble
Supreme Court in the case of Dilip Hariramani V/s. Bank of Baroda
[Decided in Criminal Appeal No.767/2022 dated 09/05/2022] wherein
in Para-8 to 12 the Hon'ble Supreme Court as under :
8. Sub-section (2) to Section 141 of the NI Act states that
notwithstanding anything contained in sub-section (1), where a company
has committed any offence under the Act, and it is proved that such an
offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of any director, manager, secretary or
other officers of the company, then such director, manager, secretary or
other officers of the 9 S.M.S. Pharmaceuticals Ltd. v. Neeta
Bhalla and Another, (2005) 8 SCC 89, para 4 and 9. company shall
also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly. Sub-section (2) to Section 141
of the NI Act does not state that the persons enumerated, which can include
an officer of the company, can be prosecuted and punished merely because
of their status or position as a director, manager, secretary or any other
officer, unless the offence in question was committed with their consent or
connivance or is attributable to any neglect on their part. The onus under
sub-section (2) to Section 141 of the NI Act is on the prosecution and not
on the person being prosecuted.
9. In Pratap Chand (supra), specific reference was made to the Explanation to
Section 34 of the Drugs and Cosmetics Act, which states that for Section 34, a
‘company’ means a body corporate and includes a firm or association of
individuals, and a ‘director’ in relation to a firm means a partner in the firm.
Thereafter, the conviction of the second respondent, one of the partners in
the firm therein, was quashed on the ground that he cannot be convicted
merely because he has the right to participate in the firm's business in terms
of the partnership deed. Thus, notwithstanding the legal position that a firm
is not a juristic person, a partner is not vicariously liable for an offence
committed by the firm, unless one of the twin requirements are satisfied and
established by the prosecution. This Court gave the following reasoning:
“7. It is seen that the partner of a firm is also liable to be convicted for an
offence committed by the firm if he was in charge of, and was responsible
to, the firm for the conduct of the business of the firm or if it is proved
that the offence was committed with the consent or connivance of, or was
attributable to any neglect on the part of the partner concerned. In the
present case the second respondent was sought to be made liable on the
ground that he along with the first respondent was in charge of the
conduct of the business of the firm. Section 23-C of the Foreign Exchange
Regulation Act, 1947 which was identically the same as Section 34 of the
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Drugs and Cosmetics Act came up for interpretation in G.L. Gupta v. D.H.
Mehta, (1971) 3 SCC 189 where it was observed as follows:
“What then does the expression ‘a person in- charge and responsible for
the conduct of the affair of a company’ means? It will be noticed that the
word ‘company’ includes a firm or other association, and the same test
must apply to a director in-charge and a partner of a firm in-charge of a
business. It seems to us that in the context a person ‘in-charge’ must
mean that the person should be in overall control of the day to day
business of the company or firm. This inference follows from the wording
of Section 23-C(2). It mentions director, who may be a party to the policy
being followed by a company and yet not be in- charge of the business of
the company. Further it mentions manager, who usually is in charge of
the business but not in overall charge. Similarly the other officers may be
in charge of only some part of business.”
10. We would also refer to the summarisation of law on Section 141 by this
Court in National Small Industries Corporation Limited v. Harmeet Singh Paintal
and Another,10 to the following effect:
“39. From the above discussion, the following principles emerge:
(i) The primary responsibility is on the complainant to make specific
averments as are required under the law in the complaint so as to make
the accused vicariously liable. For fastening the criminal liability, there is
no presumption that every Director knows about the transaction.
(ii) Section 141 does not make all the Directors liable for the offence. The
criminal liability can be fastened only on those who, at the time of the
commission of the offence, were in charge of and were responsible for
the conduct of the business of the company.
(iii) Vicarious liability can be inferred against a company registered or
incorporated under the Companies Act, 1956 only if the requisite
statements, which are required to be averred in the complaint/petition,
are made so as to make the accused therein vicariously liable for offence
committed by the company along with averments in the petition
containing that the accused were in charge of and responsible for the
business of the company and by virtue of their position they are liable to
be proceeded with.
(iv) Vicarious liability on the part of a person must be pleaded and
proved and not inferred.
(vii) The person sought to be made liable should be in charge of and
responsible for the conduct of the business of the company at the
relevant time. This has to be averred as a fact as there is no deemed
liability of a Director in such cases.”
11. In the present case, we have reproduced the contents of the complaint
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and the deposition of PW-1. It is an admitted case of the respondent Bank
that the appellant had not issued any of the three cheques, which had been
dishonoured, in his personal capacity or otherwise as a partner. In the
absence of any evidence led by the prosecution to show and establish that
the appellant was in charge of and responsible for the conduct of the affairs
of the firm, an expression interpreted by this Court in Girdhari Lal Gupta v.
D.H. Mehta and Another11 to mean ‘a person in overall control of the day-
to-day business of the company or the firm’, the conviction of the appellant
has to be set aside. 12 The appellant cannot be convicted merely because he
was a partner of the firm which had taken the loan or that he stood as a
guarantor for such a loan. The Partnership Act, 1932 creates civil liability.
Further, the guarantor's liability under the Indian Contract Act, 1872 is a civil
liability. The appellant may have civil liability and may also be liable under
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and
the Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. However, vicarious liability in the criminal law in
terms of Section 141 of the NI Act cannot be fastened because of the civil
liability. Vicarious liability under sub-section (1) to Section 141 of the NI Act
can be pinned when the person is in overall control of the day- to-day
business of the company or firm. Vicarious liability under sub-section (2) to
Section 141 of the NI Act can arise because of 11 (1971) 3 SCC 189 12 State
of Karnataka v. Pratap Chand and Others, (1981) 2 SCC 335. the director,
manager, secretary, or other officer's personal conduct, functional or
transactional role, notwithstanding that the person was not in overall control
of the day-to-day business of the company when the offence was committed.
Vicarious liability under sub-section (2) is attracted when the offence is
committed with the consent, connivance, or is attributable to the neglect on
the part of a director, manager, secretary, or other officer of the company.
12. The demand notice issued on 04 th November 2015 by the Bank, through
its Branch Manager, was served solely to Simaiya Hariramani, the authorised
signatory of the Firm. The complaint dated 07th December 2015 under
Section 138 of the NI Act before the Court of Judicial Magistrate,
Balodabazar, Chhattisgarh, was made against Simaiya Hariramani and the
appellant. Thus, in the present case, the Firm has not been made an accused
or even summoned to be tried for the offence.”
20] From the perusal of above observation it becomes clear
that in order to attract vicarious liability, such person should be
responsible for day to day affairs of the firm. In this case, complainant
clearly admitted that entire transaction was taken place between
complainant and Hiralal Mistry and he also admitted that present
accused Manoj Mistry is not the partner in the said firm. Therefore, it
cannot be said that Mr. Manoj Mistry comes under Section 141 of N.I.
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Act. In such circumstances, no vicarious liability will attract against Mr.
Manoj Mistry U/s. 141 of N.I. Act. Therefore, it cannot be said that
cheque was issued by accused No.3 for discharging liability. In result,
point no.1 is answered in the Negative.
AS TO POINT NO. 2 :
21] In order to prove that, cheques were returned unpaid
complainant has produced on record cheque returned memo at Exh. 38,
Said memo bears seal of the bank and signature of bank officer.
Therefore, as per presumption u/s 146 of N.I. Act. It is to be presumed
that, disputed cheques have been dishonoured for a reason “Exceed
Arrangement”. In result, point no.2 is answered in the Affirmative.
AS TO POINT NO.3 TO 6 :
22] It is a matter of record that, complainant has sent demand
notice on 01/02/2018 which is within limitation. Admittedly, cheque
amount of this case is Rs.3,78,381/- but demand notice was sent for an
amount of Rs.5,11,060/-. In cross-examination, complainant has
admitted that, through demand notice they called upon accused to pay
an amount of Rs.5,11,060/-. Thus, amount claimed in the demand
notice is excess than the cheque amount. Therefore, said notice cannot
be termed as legally correct demand notice, but it is defective in the
nature and not as per compliance of the provisions of N.I. Act.
Therefore, it cannot be said that, there was proper demand notice on
the part of complainant. Consequently, there was no question of having
cause of action to file this complaint. Therefore, it cannot be said that,
complainant has filed this complaint within limitation. In result, point
nos. 3 answered in the affirmative while point Nos.4 to 6 are answered
in the Negative.
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AS TO POINT NO. 7:
23] Taking into consideration answer of points Nos.1 and 4 to
6, accused are entitled for acquittal. In result, I pass following order:-
ORDER
1] Accused No.1 M/s.Amritlal & Associates and accused No.3
Mr. Manoj Mistry are hereby acquitted vide Section 255(1) of
Criminal Procedure code for an offence punishable under Section
138 r/w.141 of the Negotiable Instruments Act.
2] Bail bond of accused No.3 stands canceled.
3] Accused No.3 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 437 (A) of the Code of Criminal Procedure. Said bail bonds
shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Sd/-
Mumbai (K. G. Sawant)
Dt. 06/05/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 06/05/2024
Typed On : 06/05/2024
Signed On : 06/05/2024
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