Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 1793/SS/2018
Filed on : 13/04/2018
Registered on : 13/04/2018
Decided on : 23/02/2023
Duration : 04Y.10M.10D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 1793/SS/2018
CNR: MHMM190046562018
Exh.
Petronas Lubricants (India) Pvt. Ltd.
(formerly known as Petronas Marketing
(India) Pvt. Ltd.) A Private Limited Company,
dul incorporated under the companies Act and
having their registered office earlier at 349,
Business Point, 204205, Western Express
Highway, Andheri(E), Mumbai 400 069 and
now At Unit No. 603, “C” Wing, Corporate Avenue,
Opp. Solitaire Corporate Park, Chakala, Andheri (E),
Mumbai 400 093, through its authorized officer
Mr. Arvind Narayan Shingal, age 38 years, ...Complainants
Versus
1. M/s. Akshat Tractors,
A Firm, carrying on business at :
Gate No. 899, Pune Solapur Road,
Housing Board Chauraha, Kawadi Pat Tal,
Haveli, Pune 412 307 Maharashtra.
2. Mr. Sanjay Khaire,
Proprietor/Authorized signatory of :
M/s. Akshat Tractor, and carrying on
Business at Gate No. 899, Pune Solapur Road,
Housing Board Chauraha, Kawadi Pat Tal,
Haveli, Pune 412 307, Maharashtra. ...Accused
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2 C. C. No. 1793/SS/2018
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Shri. M. S. Dhavale for the complainant
Advocate Smt. Pooja Gupta holding for Vrushabh Savala for accused.
JUDGMENT	JUDGMENT
(Delivered on 23/02/2023)
Accused are 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 is the Private Limited company, incorporated under
companies Act. Complainant has filed this complaint through its
authorized representative Mr. Arvind Shingal. Accused no. 1 is a firm
and accused no. 2 is its proprietor/authorized signatory. It is the case
of complainant that, pursuant to order placed by accused from timeto
time, the complainant had sold and supplied, lubricating oil goods,
under several invoices to the accused. In default of payment, accused
was liable to pay interest @ 24% per annum. According to
complainant, last part payment of Rs. 1,90,000/ was made by the
accused on 09/03/2017. As per account maintained by complainant in
their regular course of business, a sum of Rs. 34,82,736/ together with
interest was payable by the accused. For payment of said amount,
accused issued cheque bearing no. 000278 dated 05/02/2018 for Rs.
3482736/ drawn from account of accused no. 1.
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3] Complainant presented said cheque for clearance, with its banker
on 05/02/2018, however vide memo dated 07/02/2018 it was returned
back, with remark “Refer to drawer” for want of sufficient funds in the
account of accused to honour the cheque.
4] It is further case of complainant that, after dishonoured of
cheques, he issued statutory demand notice to accused on 01/03/2018,
calling upon accused to pay the cheque amount within stipulated time.
Notice was returned back with remark “Not known”. Notice was sent on
correct address and hence it was presumed to be good service. Inspite
of service of notice, accused did not pay cheque amount to the
complainant, hence 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 by the complainant on 13/04/2018.
5] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which he
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. 12 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.
Resolution dated 14/12/2017 Exh. 18
Letter of authority dated 15/12/2017 Exh. 19
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Computerized copies of 7 invoices Exh. 20 collectively
Transport receipt Exh. 21 and 22
Delivery challan Exh. 23
Ledger account of accused maintained by
complainant along with certificate of C.A.
and certificate U/s. 65 (B) of Evidence Act.
Exh. 24
Original cheque Exh. 25
Cheque returned memo Exh. 26
Letter issued by the bank Exh. 27
Office copy of notice Exh. 28
Postal receipts Exh. 29 and 30
Return envelope from the post Exh. 31 and 32
Notice from the sealed envelope at Exh. 31 Exh. 33
7] After completion of complainant's evidence, statement of accused
u/s. 313 of Cr.P.C. was recorded at Exh. 38. Accused has taken a
defence of falsely implication. In support of his defence, accused
neither examined himself nor any witness.
8] Complainant has filed his written notes of argument at Exh. 46
while accused has filed his written notes of argument at Exh. 50. Heard
Ld. Advocate for both parties at length and perused the case record. In
view of accusation and argument of complainant, following points arise
for my determination and I have recorded my findings thereon as
follows:
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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 “Refer to
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
6. What order ?
.. Accused are
convicted
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the account of
accused and it bears his signature.
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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.
 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
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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
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
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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
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
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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 its case, complainant examined its
representative namely Arvind Shingal by filing his affidavit of
examinationinchief at Exh. 12 wherein he has reiterated his case from
the complaint. His evidence shows that, complainant had provided
lubricating oil to the accused from timetotime, under various invoices.
His evidence further shows that all the invoices bears seal of the
accused as a acknowledgement. His evidence further shows that in
order to repay outstanding amount alongwith interest, disputed cheque
was issued by the accused. Complainant in support of their case
produced tax invoices at Exh. 20. Lorry receipt Exh. 21 to 22 and
delivery challan at Exh. 23. All these documents bears seal of accused
firm. Complainant has also produced on record ledger account to show
that on 16/02/2011 an amount of Rs. 3482736/ was outstanding
against the accused.
14] Ld. Advocate for accused conducted crossexamination of
complainant at length. Through crossexamination, Ld. Advocate for
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accused tried to suggest that complainant had obtained cheque from the
accused, for security purpose, before supplying the goods. However,
said suggestion is denied by the representative of complainant (C.W.1).
According to him, they accept the cheque against the transaction before
delivery of goods but not for security purpose. It was also suggested
that, vide invoice number 843, 844 and 879 goods were not delivered
to the accused. However same is denied by the complainant.
Complainant has produced on record tax invoices and delivery challans,
which bears seal of the accused company and signature of someone on
behalf of accused, acknowledging delivery of goods. Thus, record
clearly shows that cheque amount was outstanding against the accused.
For the sake of argument, if it is presumed that, disputed cheque was
issued for security purpose, then also it doesn't absolve the accused
from his liability to pay the amount, unless accused proves that he was
not liable to pay cheque amount. Accused has not denied his signature
on the cheque. Therefore, in order to rebut the presumption, it was for
the accused to show that cheque amount was not outstanding against
him and he was not liable to pay it. However, record shows that
complainant had supplied lubricating oil to the accused and against that
cheque amount was outstanding. Accused has failed to rebut the
presumption u/s. 139 of N.I. Act. Evidence on record clearly shows that,
disputed cheque was issued for discharging legal enforceable liability.
In result, point no. 1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
15] In order to prove that cheque was returned unpaid, complainant
has relied upon his own oral evidence in addition to documentary
evidence i.e. cheque return memos filed at Exh. 26. Said memo bears
seal of the bank. Therefore, as per Section 146 of N.I. Act, it is to be
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presumed that said cheque was returned unpaid for the reason
mentioned in memo. As per cheque returned memo dated 07/02/2018
filed at Exh. 26, cheque was returned unpaid for reason “Refer to
drawer”. Accused has also not denied the fact that cheque was
dishonoured for the reason “Refer to drawer”. Thus, it remains proved
that cheque was dishonoured for reason “Refer to drawer”.
16] Cheque was dishonoured vide memo dated 07/02/2018.
Complainant has produced on record, office copy of demand notice
dated 01/03/2018. Complainant has also produced on postal receipt
and returned envelope of notice. It is not the case of accused that
demand notice was not sent on his correct address. Therefore, accused
cannot take defence that notice was not served upon him. As observed
by Hon'ble Supreme court in the case of C.C. Alavi Haji V/s. Palapetty
Muhammed decided in criminal appeal no. 767/2007 dated
18/05/2007 when demand notice was sent on correct address but not
received by the accused for any reason, in that case accused had to
shown willingness or pay the cheque amount to the complainant within
15 days from the date of service of summons from the court. In the
case at hand, accused has not paid cheque amount to the complainant
till today. Therefore, defence of nonservice of notice is not available to
the accused. It is a matter of record that, notice was sent within
limitation and complaint is also filed within limitation. In result point
nos. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
17] 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
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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 them 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.
(K. G. Sawant)
Date : 23/02/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
18] Inspite of repeatedly called accused did not appear. Ld.
Advocate for accused moved application for giving exemption to
accused from personal attendance in the court today. She submitted
that due to some unavoidable reasons, accused could not appear in the
court today. On last date also matter was for judgment but accused was
absent and hence next date was given as per convenience of accused.
Inspite of opportunity given, accused failed to appear. Therefore, I am
constrained and compelled to proceed with the judgment in absence of
accused. By his conduct accused has waived off his chance to submit on
the point of sentence. The offence punishable U/s. 138 of N.I. Act is
required to be tried summarily. For such trials procedure contemplated
in Code of Criminal Procedure for the trial of summons case as a
specified in Chapter XX of code is to be adopted. This case is also tried
as per the procedure prescribed for the trial of summons case vide
Chapter XX of Cr.P.C.
19] I have carefully gone through the provisions of Chapter XX
and Section 255 of the Code of Criminal Procedure. Unlike warrant
trial procedure, it is nowhere expressed under Chapter XX that accused
must be heard on the point of sentence before pronouncing it. Hence as
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a mandate, it can't be invoked in summons cases. In fact in present
case, inspite of any speaking provisions, accused was given chance to
appear and submit on the point of sentence, but it was accused who
waved off his chance to open mouth on the point of sentence.
Therefore, this court proceeds further in the absence of accused.
20] Ld. Advocate Smt. Pooja Gupta holding for Vrushabh Savala for
accused submitted that court may show leniency and impose minimum
punishment on the accused. On the other hand, Ld. Advocate Maruti
Dhavle for complainant has submitted that maximum sentence of
imprisonment and fine amount be imposed on accused and also prayed
to grant maximum compensation in favour of complainant as per law.
According to him, case is pending since last 5 years and hence he
prayed to compensate the complainant adequately.
21] Having heard both parties at considerable length and considering
nature of offence, conduct of the accused, the period from which matter
is pending in my opinion following order will meet the ends of justice:
ORDER
i. The accused No. 2 Mr. Sanjay Khaire Proprietor of accused No. 1
M/s. Akshat Tractors 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 hereby sentenced to suffer simple imprisonment for
period of Six months and to pay compensation of Rs. 45,00,000/ (Rs.
Forty Five Lacs 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
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compensation, accused shall suffer further simple imprisonment for the
period of One month.
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. Today i.e. on the date of judgment accused remained absent,
hence issue standing Nonbailable warrant against the accused for his
arrest through concerned police station for execution of sentence in
view of Section 418 (2) of Cr.P.C.
vii. The copy of this Judgment shall be send to the convicted accused,
free of cost, immediately after it is prepared, in view of section 363(1)
of the Code of Criminal Procedure, 1973.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 23/02/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 23/02/2023
Typed On : 23/02/2023
Signed On : 23/02/2023
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