Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 1015/SS/2019
Filed on : 13/05/2019
Registered on : 13/05/2019
Decided on : 10/05/2024
Duration : 04Y. 11M. 26D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 1015/SS/2019
CNR: MHMM190038132019
Exh. No.
Mr. Hanumant Jagannath Rawool.
Aged 57 years, Occu : Business
Residing at New Indira Nagar,
Shri Ganesh Seva Chawl Committee,
Near Balvikas Vidya Mandir,
Jogeshwari (E), Mumbai _ 400 060. …Complainant
Versus
Mr. Anil Vithal Vardekar.
Aged : Adult,
Residing at Kulshri Co.Op. Hsg. Soc.
A wing, 5th Floor, Room No. 504,
SherEPunjab, Jijamata Marg,
Andheri (E), Mumbai 400 093 ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Anil Jaiswal for the complainant.
Advocate I. S. Pawar for the accused.
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JUDGMENT	JUDGMENT
(Delivered on 10/05/2024)
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] Complainant and accused are known to accused since
long. In the year 2013 accused and his son introduced complainant
with one Mr. Ranjit Saha, who is working with Roshan Builders and
Developers. Relying on words of accused, complainant booked flat No.
204, L& T Constructions, for total consideration of Rs. 13,50,000/.
Accordingly, on 29/11/2013, complainant paid an amount of Rs.
2,00,000/ in cash to the accused against the booking of flat. Again at
the time of Bhoomipujan i.e. on 02/06/2015, complainant gave an
amount of Rs. 1,50,000/ to the accused. When complainant got
knowledge that, said flat has been sold out to 3rd person, complainant
requested accused to repay his amount. Accordingly, to repay his
amount, accused issued cheque no. 128371 dated 28/12/2018 for an
amount of Rs. 2,00,000/ drawn on account of accused maintained with
Bank of India, Santacruz, Mumbai.
3] Complainant presented above mentioned said cheque for
clearance with his banker. However, cheque returned unpaid vide
memo dated 29/12/2018 with reasons “Payment stopped by drawer”.
Again on request of accused, it was redeposited, however on
01/02/2019 cheque returned unpaid with same remark.
4] After dishonoure of cheque, complainant issued statutory
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demand notice to accused on 14/02/2019 by speed post, calling upon
accused to pay the cheque amount, within stipulated time. Notice was
duly served upon accused on 16/02/2019 but he failed to pay amount.
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
15/03/2019.
5] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which accused
pleaded not guilty and opt for trial.
6] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh.13, 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.
Photocopy of possession letter ArticleA
Invitation card ArticleB
Original cheque Exh. 15
Cheque returned memo Exh. 16
Office copy of notice Exh. 17
Postal receipt Exh. 18
Postal track consignment ArticleC
7] After completion of complainant's evidence, statement of
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accused vide Section 313 of Cr.P.C. was recorded at Exh. 21, wherein
accused has taken defence of falsely implication.
8] Heard Ld. Advocate for complainant and accused in person. 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
cheque was issued by the accused, in favour
of complainant for discharging legal
enforceable liability?
…. In the
affirmative
2. Does complainant prove that cheque was
returned unpaid for reason “Payment
stopped by drawer”?
…. In the
affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
…. In the
affirmative
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
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6. What order ?
.. Accused is
convicted.
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque has been drawn from the
account of accused and it bears his signature.
AS TO POINT NO. 1
10] The accused is roped in the offence punishable u/s. 138 of
the N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
 The payee or the holder in due course of the cheque makes a
demand for the payment of said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of
the receipt of the information by him from the bank regarding
dishonor of the cheque as unpaid.
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 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.
11] Before going further, it is necessary to mention here that, as per
Section 139 of N.I. Act, there is a presumption in favour of holder of
cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
d) as to time of transfer . that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements. that the indorsements
appearing upon a negotiable instrument were made in the
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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.
12] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
Section 139 of the said act plays significant role. In view of express
provision of section 139 of N.I. Act a presumption shall be drawn that
the holder of cheque, received the cheque, of the nature referred to in
Section 138 for the discharge of any debt or other liability unless
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contrary is proved. Thus, it gives power to court to presume unless
contrary is proved that the holder of cheque received the cheque for
discharge in whole or in part of any debt or other liability. The word
“shall presume” as per Section 4 of Indian Evidence Act means
whenever it is directed by this act, that the court shall presume a fact, it
shall regard such fact as a proved unless and until it is disproved. Thus,
the burden of proof as to cheque has not been issued as a legal debt or
liability is always on accused and it is for him to rebut said
presumption. A useful guidance on the said point can be taken from the
verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
13] In order to prove his case, complainant examined himself (C.W.1)
by filing his affidavit of examinationinchief at Exh.13, wherein he has
reiterated his case from the complaint. His evidence shows that, he had
given an amount of Rs. 3,50,000/ to the accused against booking of
flat. However, accused could not give flat and hence to repay his
amount, disputed cheque was issued by the accused. Ld. Advocate for
accused conducted crossexamination of complainant at length. In
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crossexamination, it has come on record that, there is no evidence to
show that, Ranjit Saha was working with Roshan Builders. Suggestion
was given to complainant that, he has not given any amount to accused
in cash but same has been denied by the complainant.
14] Through crossexamination, accused has a taken defence that, in
the year 2013 complainant had approached to accused for financial
assistance for the purpose of purchasing house and accordingly to
extend financial assistance to the complainant, disputed cheque was
given by accused in favour of complainant. It was further suggested
that, later on accused realized that, complainant would not be able to
repay his amount and therefore, he canceled his plan to give loan to the
complainant.
15] However, there is absolutely no evidence on record to support
defence of accused. It is true that, complainant has not produced any
documentary evidence to show that, he had given an amount of Rs.
3,50,000/ to the accused. It has also come on record that, accused as
well as his son has issued cheques to many persons and got it
dishonored. Many complaints are filed against accused and his son.
16] Accused examined himself at Exh. 22 and taken a defence that,
said cheque was given by him to give loan to the complainant. In cross
examination, he admitted that, his salary is Rs. 15,000/ per month.
One Mr. Narvekar has also filed complaint against him for offence U/s.
138 of N.I.Act. According to accused, he had issued cheque to Mr.
Narvekar also to give loan to him.
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17] Accused also examined his son Mr. Prashant Vardekar (D.W.2) at
Exh. 32. He also denied receipt of amount from complainant and
further stated that, to give loan to the complainant disputed cheque was
issued in his favour. In crossexamination, Mr. Prashant admitted that,
they have issued such type of cheques to some people.
18] From perusal of oral and documentary evidence adduced by both
parties, it becomes clear that, disputed cheuqe has been drawn from
account of accused and it bears his signature. Defence taken by the
accused that, he issued said cheque to give loan to the complainant is
not at all probable and acceptable. Conduct of accused that, he issued
such cheques to some other persons and pendency of complaint U/s.
138 of N.I.Act against him is relevant fact. Case of complainant is
appears to be probable and acceptable. Accused has failed to rebut
presumption U/s. 139 of N.I. Act. Thus, it remains proved that,
disputed cheque was issued by accused to repay the amount of
complainant i.e. for discharging legally enforceable liability. In result,
point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
19] Admittedly, cheque has been dishonoured vide memo
dated 01/02/2019 for reason “Payment stopped by drawer”. Said
memo bears seal of the bank. Therefore, it carries presumption u/s.
146 of N.I.Act, that it was dishonoured for the reason mentioned in the
memo. It is matter of record that, complainant has sent notice on
14/02/2019 and it was duly served upon accused. According to
accused, he had sent reply to the accused. However, he has not paid
cheque amount within 15 days from the date of service of demand
notice. Complainant has filed this complaint on 15/03/2019, which is
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within limitation. In result, point nos. 2 to 5 are answered in the
affirmative.
AS TO POINT NO.6
20] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved his claim with
cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
probation to him vide Section 3 to 5 of the Probation of Offenders Act,
1958. Therefore, the accused is called upon to state on the point of
sentence. Sd/
(K. G. Sawant)
Date : 10/05/2024 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
21] I explained to accused that, he is held guilty for the offence
of the dishonor of cheque and that the N.I. Act has provided
punishment to the offence of imprisonment upto two years and fine
upto twice of the cheque amount. Thereafter, I asked the accused to
clarify his stand on the nature and quantum of the sentence, if any.
22] Upon asking on the point of sentence, accused submitted
that, he is the only earning member of his family. His wife is also
suffering from illness. My son is also accused in cheque bounce cases. I
have no other support. Hence prayed to take lenient view.
23] Complainant and his advocate are absent when called.
From perusal of case record, it appears that, matter is pending since
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2019. it appears that, complainant is also from poor family and he is
actually victim in this matter. Considering nature of offence, purpose of
legislature behind enactment of said act, conduct of accused, I pass
following order:
ORDER
i. Accused Mr. Anil Vithal Vardekar is hereby convicted for the
offence punishable under section 138 of the Negotiable Instrument Act,
1881 vide section 255(2) of the Code of Criminal Procedure, 1973.
ii. Accused is sentenced to suffer simple imprisonment for period of
Three months and accused shall pay, compensation of Rs. 2,50,000/
(Rs. Two Lacs Fifty Thousand only) to the complainant vide Section
357(3) of the Code of Criminal Procedure. Accused shall pay above
amount of compensation within two months from today, in default of
payment of compensation, accused shall suffer further simple
imprisonment for the period of 15 days.
iii. The amount of compensation realized from the accused, shall be
paid to the complainant, subject to expiry of the appeal period or the
orders of Honourable Appellate Court (if any).
iv. Accused to surrender his bail bonds.
v. No question of setoff under section 428 of the Code of Criminal
Procedure, 1973, as the accused has not spent any period in the custody
during the trial.
vi. The copy of this Judgment be provided free of cost to the
accused, immediately after it is prepared, in view of section 363(1) of
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the Code of Criminal Procedure, 1973.
vii. Dictated and pronounced in open court
Sd/
Mumbai (K. G. Sawant)
Dt. 10/05/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 10/05/2024
Typed On : 10/05/2024
Signed On : 10/05/2024
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