Final Order 1

Order Details: Copy  of Judgment
Pdf Text: (1) CC. No.1521/SS/2018 [Judg.]
CNR No.MHMM19-004071-2018
Received on : 27 03 2018
Registered On : 28 03 2018
Decided on : 11 04 2025
Duration : Y M D
07 00 14
IN THE COURT OF
JUDICIAL MAGISTRATE, FIRST CLASS
[63RD COURT, ANDHERI, MUMBAI]
[PRESIDED OVER BY SHRI. R.D. DANGE]
C.C. No.1521/SS/2018
Exh.58
Sharda Prasad Rangnath Mishra
R/at : Tiwari Banwari Chawl,
Sane Guruji Nagar, N.S.S. Road,
Ashalfa, Mumbai-400 084. ...Complainant
Versus
1. M/s. Empower Facility Management Pvt. Ltd.
Shop No.1, Upper Floor,
Panchratna Society, Road No.3,
Singh Estate, Kandivali (E),
Mumbai-400 101.
2. Shivaom Vidyakant Tiwari
Director of M/s. Empower
Facility Management Pvt. Ltd.
Shop No.1, Upper Floor,
Panchratna Society Road No.3,
Singh Estate, Kandivali (E),
Mumbai-400 101.
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3. Raghvendra Dubey
Director/ Manager of
M/s. Empower Facility Management Pvt. Ltd.
Shop No.1, Upper Floor,
Panchratna Society, Road No.3,
Singh Estate, Kandivali (E),
Mumbai-400 101. ...Accused
________________________________________________________
Adv. for Complainant : Shri. D. R. Mishra
Adv. for Accused : Shri. Ramlal Khushwaha
________________________________________________________
J U D G M E N T
(Delivered on 11/04/2025)
Accused Nos.1 to 3 are facing trial for an offence
punishable under Section 138 r/w. 141 of the Negotiable
Instruments Act (hereinafter referred to as the N.I. Act).
Complainant’s case in short is as follows:
2] Accused No.1 is company incorporated under
Companies Act, 1956 and accused Nos.2 and 3 are directors and
manager of day to day affairs of accused No.1. Accused Nos.2
and 3 are doing, performing and carrying on business and
authorized signatories as well as in charge of accused No.1.
Accused employed and deputed the father of complainant Mr.
Rangnath Vishwanth Mishra, his uncle Umashankar Baiijnath
Mishra and his cousin namely Mithilesh Umashankar Mishra as
security guard and assigned them duty at Finacus Solutions Pvt
Ltd., 7C, Near Sona Udyog, Parsi Panchayat Road Andheri (E),
Mumbai-400 069. They performed their duty as security guards
since 01/12/2017 till 31/12/2017.
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3] After completing duty, they approached accused for
payment of their salaries in cash as they do not hold bank
accounts in Mumbai. Accused repeatedly called them and sent
back without making their salaries in cash. Lastly, on
10/01/2018 accused called them to pay salary and while going
to the office of accused, complainant accompanied with his
father and other relatives. Accused Nos.2 and 3 represented
that there was no cash for payment and asked complainant as to
whether he is having bank account. He told them that he is
having bank account whereupon accused No.2 asked him to
accept cheque in his name and get the same realized and
distribute respective salaries to the relatives.
4] In order to discharge liability towards salaries of
relatives of complainant, accused issued cheque bearing
No.181950 dated 10/01/2018 for Rs.29,200/- drawn on I.D.B.I.
Bank, Kandivali (E) branch, Mumbai in favour of complainant.
Accused No.2 made written endorsement of the name of the
relative of complainant showing the payment payable to the said
employees and handed over crossed cheque to the complainant.
5] Complainant on 17/01/2018 presented said cheque
for encashment in his banker i.e. Allahabad Bank, Andheri (E)
branch, Mumbai. However, it was returned dishonoured, so on
06/02/2018 he again presented said cheque for encashment but
it was dishonoured on 07/02/2018 with remark ‘Funds
Insufficient’ by the complainant’s banker. Thereafter,
complainant issued demand notice dated 14/02/2018 to the
accused and dispatched the same on 15/02/2018 by R.P.A.D
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which was served on accused on 16/02/2018. Inspite of receipt
of notice, accused did not pay cheque amount to complainant.
Hence, this complaint.
Appearance of accused and his plea:
6] Pursuant to the issuance of summons, accused
appeared. The particulars of offence was explained to them vide
plea at Exhibit No.8. They did not plead guilty and claimed to be
tried.
7] As per provisions of section 143 of the Act, 1881
this case can be tried as a summary triable case. But the Court
has option to try it in summary manner or to try it in the
procedure laid down for summons trial case. Section 262(1) of
Criminal Procedure Code, 1973 read with section 143 of the
Act, there is an option to the Magistrate to adopt the summary
trial or not. The record of this court speaks that, this case is
tried as per the procedure of summons trial case. The evidence
of witness is recorded separately and in exhaustive manner and
not as laid down in section 263 of the Code of Criminal
Procedure, 1973.
Oral evidence of the complainant :
8] The complainant has examined himself at (Exh.12)
as C.W.1. Complainant has filed additional evidence affidavit of
C.W.1 at (Exh.44) and closed his evidence by filing pursis
(Exh.32 and 50).
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9] Documentary evidence of the complainant :
Documents Exhibit
Cheque 14
Demand notice 15
Postal Receipts 16 collectively
Extract of Master data taken from website
of Ministry Corporate Affairs
46
Visiting Card of accused 47
Mobile conversation 48
Examination of accused :
10] After the evidence of the complainant, statements of
accused under Section 313 of the Code of Criminal Procedure
has been recorded vide (Exh.31). Their further statement under
Section 313 of Cr. P.C. were recorded vide Exh. 54 and 55.
Argument of both side :
11] Heard Learned advocate for complainant and
perused written notes of arguments filed by him at (Exh.56).
Also heard argument of advocate for accused.
12] In view of all these discussions following points
arise for my determination and I have given my findings on
them with the reason stated below :
Sr.No POINTS FINDINGS
1 Does the complainant prove that, the
accused issued the disputed cheque in
his favour for discharging legally
enforceable liability or debt ?
Yes
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2 Does the complainant prove that he
presented the cheque within prescribed
period for encashment and it was
dishonored for the reason “Funds
Insufficient” ?
No
3 Does the complainant prove that he
issued statutory notice to the accused
within prescribed period and the
accused, in spite of receipt of it, failed
to pay the amount of disputed cheque
to him within stipulated period?
Yes
4 What order ? Accused are
acquitted.
R E A S O N S
AS TO POINT NO. 1 :
13] Section 138 of N.I. Act provides that the drawer of
the cheque is deemed to have committed the offence if the
following ingredients are fulfilled :
(i) Accused drawn a cheque on an account maintained by him
with a banker for the payment of any amount of money to
complainant.
(ii) The cheque is drawn for the discharge of the ‘whole or part’
of any debt or other liability. ‘Debt or other liability’ means
legally enforceable debt or other liability.
14] Complainant has examined himself at (Exh.12 and
44) and has reiterated all the contentions of the complaint in his
affidavit of examination in chief. He has affirmed that his father,
uncle and cousin were employed by the accused as a security
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guards. He has further affirmed that they performed the duty in
between 01/12/2017 to 31/12/2017. He says that when his
relative went to the accused for demanding their salary in cash,
they declined to pay the same in cash and asked them to give
their bank accounts. He further says that their relatives did not
have bank accounts. He states that so he lastly went along with
relatives to the accused asking them to pay their salaries. He
testifies that lastly accused agreed to issue cheque in his name
towards payment of salary of their relatives. It is his evidence
that accused towards payment of salary of their relatives, issued
cheque No.181950 of Rs.29,200/- in his favour. It is his further
evidence that accused No.2 signed the cheque as director of
accused No.1. It is his evidence that accused No.2 had made
written endorsement in favour of relatives showing the payment
payable to them and handed over the cheque to him.
15] Advocate for complainant has canvassed submission
that complainant through oral as well as documentary evidence
has proved that accused Nos.2 and 3 are directors and manager
of day to day work of accused No.1 company. He has also
submitted that none of the accused have disputed their
signature on the cheque in question. It is his next submission
that statutory presumption under Section 139 of N.I. Act have
arisen in favour of complainant. He has placed reliance on the
judgment of Hon’ble Allahabad High Court in case of Devendra
Kumar Rai V/s. Ram Gopal Rai [1998(2)ALD(CRI)792] to
buttress his submission that there is no requirement in law that
the cheque is to be issued to that person only from whom the
liability was incurred. He has further submitted that
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complainant has proved his case against accused. He prays to
convict the accused.
16] C.W.1 in his cross-examination says that he is
working as clerk with advocate from last 10 to 12 years. He says
that he had no transaction with accused No.1 company. He
further says that he had not produced any document to show
that his relatives were ever working with accused No.1 company.
He next submits that his relatives are having bank account at
U.P. He says that it is wrongly mentioned in Para-18 of his
affidavit that his relatives were not having any bank account. He
denies suggestion that accused is not liable to pay any amount
to him. He denies further suggestion that contents of cheque and
signature appearing thereon are in different ink. He admits that
he has not produced any document on record showing that
accused Nos.2 and 3 are directors of accused No.1 company. He
admits that he was never employed in the accused No.1
company and there was no financial transaction between
accused and him. He concedes that prior to the incident he was
not acquainted with accused persons. He states that accused was
not receiving his phone call hence, he send text message to him.
He denies suggestion that he has not been authorized to file the
complaint.
17] Heard advocate for accused. He has canvassed
submission that complainant has failed to prove that accused is
liable to pay him cheque amount. He submits that there was no
transaction between accused and complainant and as such
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accused is not liable to pay any amount to him. He also submits
that complainant has failed to prove the case.
18] Section 139 of N.I.Act provides that, it shall be
presumed unless the contrary is proved, that the holder of the
cheque received the cheque of the nature referred to in section
138 of N.I. Act. for the discharge in whole or in part, of any debt
or liability. In view of the section it is incumbent upon the court
to presume that the cheque issued was in discharge of the debt.
Negotiable Instruments Act lays down special rule of evidence
and certain special presumption and preclude certain plea being
raised in particular circumstances. There is presumption under
section 118 of N.I. Act that, the consideration has passed for
execution of Negotiable Instruments. Said presumption is
rebuttable one. Accused can rebut the presumption by putting
his defence up to the test of preponderance of probability.
19] It is not disputed position that cheque (Exh.14) was
of accused No.1 company and it was signed by accused No.2.
Evidence of C.W.1 that accused Nos.2 and 3 were directors of
accused No.1 company on the date of alleged transaction and
issuance of cheque, is corroborated by a document i.e. company
master data (Exh.46). Accused have not disputed fact that they
are directors of accused No.1 company. It was not suggested to
C.W. 1 that they were not responsible for day to day affairs and
management of the company. It is also not much disputed
position that accused Nos.2 and 3 were director of accused No.1
at that time. In the context of this position, presumption
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provided under Section 118 and 139 of Negotiable Instruments
Act have arisen in favour of complainant.
20] It is settled position of law that standard for rebuttal
of presumption under Section 139 is of preponderance of
probabilities and for such rebuttal inference can be drawn not
only from the material brought on record by the parties, but also
from the circumstances relied upon by them.
21] Evidence of C.W. 1 that accused issued cheque in
his favour as his father, uncle and cousin were not having bank
account is shaken in his cross-examination due to admissions
given by him to the effect that his relatives had bank account at
the relevant time and the averment made in his affidavit to the
effect that they were not having any bank account at that time is
false. Admittedly, there was no financial or business transaction
between complainant and accused company. It is also admitted
position that he never worked in accused company. As per his
case, accused had issued cheque towards payment of salary of
his relatives. He was not suggested that his father, uncle and
cousin were not working with accused. His evidence that his
relatives were working with accused is remained unshaken.
Accused have not explained the circumstances under which they
issued cheque in question in favour of complainant. His evidence
that accused issued cheque in his favour towards salary of his
relative by making endorsement of their name overleaf the
cheque gets support from endorsement made on cheque
(Exh.14). None of the accused stepped into witness box to rebut
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the statutory presumptions. Evidence of C.W.1 that accused
issued cheque in question in his favour towards salary of his
relatives is corroborated by cheque (Exh.14).
22] In Devendra Kumar Rai (supra) the Hon’ble
Allahabad High Court has held that Negotiable Instruments Act
does not require that the cheque is to be issued to that person
only from whom the liability was incurred. In that case, accused
had issued cheque for payment of sum due to the father of
complainant. It has further ruled that when the drawer of the
cheque choose to discharge his legal liability by drawing cheque
in favour of son of person to whom he was indebted, Section
138 will be squarely attracted. So, the High Court had dismissed
the prayer of accused for quashing the proceeding under Section
138 of N.I. Act against him. In a case at hand, cheque appears to
have been issued by accused in favour of the complainant for
payment of sum due to his relatives. As such ratio laid down in
above ruling is squarely applicable to present case.
23] Considering aforesaid discussion, I find that accused
has failed to rebut the statutory presumptions upto test of
preponderance of probabilities. As such, I hold that complainant
by oral as well as documentary evidence has established that
accused issued cheque in question for discharging legally
enforceable liability to the complainant. Therefore, I hold that,
complainant has proved point No.1. So I answer it as “Yes”.
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AS TO POINT NO.2:
24] Complainant has deposed that he deposited the
cheque in question (Exh.14) for clearance with his banker
Allahabad Bank, Andheri (E) branch, Mumbai lastly on
06/02/2018 but it was dishonored for the reason ‘Funds
Insufficient’. He further states that he got knowledge about
dishonour of cheque vide cheque dishonour memo on
14/02/2018.
25] It is opt refer here Section 146 of N.I. Act which
provides that 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
dishonoured, presume the fact of dishonour of such cheque,
unless and until such fact is disproved.
26] C.W.1 in his cross-examination denies suggestion of
defence counsel that he did not deposit the cheque in question
and it was not dishonoured. It is settled principle of law that
complainant has to prove his case on his own leg.
27] In case of Vandana Pandey V/s. Abhilasha Pandey
[Criminal Appeal No.360 of 2017] the Hon'ble High Court has
held in Para No.14 that mere statement made in the statutory
notice and complaint filed before the Court would not constitute
proof of dishonor of cheque, unless further evidence to
corroborate the same was placed on behalf of the complainant.
It has also held that it is for the complainant to prove the fact of
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dishonour of cheque by cogent evidence. It has further held that
one of the mode of proving dishonour of cheque is provided in
Section 146 of N.I. Act. In that case, cheque return memo was
not bearing official mark of the bank. Therefore, the Hon'ble
High Court held that basic fact of dishonour of cheque was not
proved by the complainant.
28] In present case, cheque return memo was not
marked as exhibit as the same was not duly signed and sealed by
bank official. Accused has disputed factum of dishonour of
cheque in cross-examination of C.W.1. Complainant has not
examined any bank witness to corroborate his case that the
cheque was dishonoured for the reason 'Funds insufficient'. Mere
contention in the complaint and evidence affidavit of
complainant, is not sufficient to held that the cheque was
dishonoured. It was incumbent on the part of complainant to
bring cogent evidence to support his contention. He has not
brought such evidence.
29] Considering the law laid down by the Hon’ble High
Court and above discussion, I find that complainant has failed
to prove that the cheque was dishonoured for the reason 'Funds
insufficient'. So, I answer point No.2 as “No”.
AS TO POINT NO. 3 :
30] C.W.1 has given evidence that he got knowledge
about dishonor of cheque on 14/02/2018. It is his evidence that,
he issued notice dated 14/02/2018 to accused and dispatched
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the same on15/02/2018 by R.P.A.D. demanding amount of the
cheque. As per his evidence, the notice was duly dispatched on
correct and permanent address of accused. He states that notice
was delivered to accused on 16/02/2018. He has produced on
record postal track report to show the service of notice on
accused. He says that accused in spite of receipt of notice,
failed to pay amount of the cheque to him within a stipulated
period. C.W.1 in his cross-examination has denied suggestion
that accused were not served with demand notice on proper
address.
31] Section 138 clause (b) and (c) of N.I. Act prescribes
that, in order to constitute an offence under the section demand
notice for the payment of cheque amount should be given in
writing to the drawer of cheque by the payee within 30 days of
the receipt of information by him from the bank regarding the
return of the cheque as unpaid and the drawer of the cheque
fails to make the payment of the amount of money to the payee
within 15 days of the receipt of the notice.
32] Oral evidence of C.W.1 on the point of issuance of
notice to the accused by him is substantiated by copy of notice at
(Exh.15). His testimony that notice was sent by R.P.A.D to the
accused on 15/02/2018 is corroborated by copy of postal
receipts (Exh.16 collectively).
33] There is a presumption regarding service of
summons provided in Section 27 of General Clauses Act . It
reads thus:
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Section 27 Meaning of service by post- Where any [Central
Act] or Regulation made after the commencement of this
Act authorizes or requires any document to be served by
post, whether the expression serve or either of the
expressions give or send or any other expression is used,
then, unless a different intention appears, the service shall
be deemed to be effected by properly addressing, pre-paying
and posting by registered post, a letter containing the
document, and, unless the contrary is proved, to have been
effected at the time at which the letter would be delivered in
the ordinary course of post.
34] Accused have not disputed their address mentioned
in title clause of the complaint. It appears from demand notice
that address of accused mentioned therein matches with address
mentioned in the complaint. It appears that demand notice was
sent on the address of accused mentioned in complaint. It
further appears that notice was sent by R.P.A.D. on the address
mentioned in the notice and complaint. Therefore, it can be
inferred that the demand notice has been served on the accused
on the date mentioned by the complainant.
35] Considering the date of getting knowledge of
dishonor of cheque by the complainant and the date of issuance
of demand notice by him, it appears that the notice was given
within prescribed period of one month to accused. It appears
that there was deemed service of notice on all accused. In view
of aforesaid discussion and legal position, I held that
complainant has proved that, he issued statutory notice to
accused within prescribed period and in spite of receipt of it,
accused failed to pay an amount of the cheque to him within
stipulated period. Therefore, I answer point No.3 as “Yes”.
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AS TO POINT NO.4:
36] In view of finding recorded against point Nos.1 to 3
I am of the considered opinion that complainant has failed to
prove all the essential ingredients of Section 138 of N.I. Act. As
such accused are entitled to acquittal. Thus, in answer to point
No.4 following order is passed :
O R D E R
(1) Accused Nos.1 to 3 are acquitted of the offence
punishable under section 138 r/w.141 of Negotiable
Instruments Act vide Sec.255(1) of the Code of Criminal
Procedure.
(2) Their bail bonds stands cancelled.
(3) They are directed to furnish P.B and S. B. of Rs.7,500/-
each as per section 437A of Cr. P.C.
Date : 11/04/2025
Shri. R. D. Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
Dictated on : 11/04/2025
Transcribed on : 11/04/2025
Signed on : 21/04/2025
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