Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 1790/SS/2018
Filed on : 12/04/2018
Registered on : 12/04/2018
Decided on : 01/09/2023
Duration : 05Y. 04M. 19D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 1790/SS/2018
CNR: MHMM190046572018
Exh. No.
Shri. Satyavijay Sopan Patade.
Adult, Occu: Business
Resident of A/24, Pansare Sadan,
Mohili Village, Sakinaka,
Mumbai400 072. …Complainant
Versus
Irfan Ahamad S/o. Mohd. Bashir.
Age : 48 years, Occu : Business
Having addresses at:
Santosh Chawl, Chawl No. 1,
Room No. 3, Behind Saint Jude School,
Jari Mari, Kajupada, Sakinaka,
Mumbai.400 072. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Ramdas Kavade for the complainant
Advocate Mr. M. D. Pandey/Mr. Subhash Upadhayay for accused.
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JUDGMENT	JUDGMENT
(Delivered on 01/09/2023)
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, he knows the accused as they
were acquainted with each other since last many years. Accused
represented him that, he is in need of money and requested for financial
assistance. Complainant and accused are in the same business of Tour
and Travels. Accused requested to the complainant to hand over his
Innova car, so that, accused will borrow loan on the said car from
another bank after clearing existing loan on the said vehicle. Accused
assured complainant that he would pay difference in consideration
amount to the complainant immediately on receiving the loan amount.
Considering financial need of accused, complainant transferred Innova
Vehicle in the name of accused.
3] Accused had promised to pay difference amount of Rs. 79,265/
and accordingly in order to pay said amount, he issued post dated
cheque bearing no. 000003 dated 01/02/2019 for an amount of Rs.
79,265/ drawn from his account maintained with Bank of India,
Sakinaka branch, Mumbai. Complainant presented said cheque for
clearance with his banker, however said cheque returned unpaid vide
bank memo dated 01/02/2018 for a reason “No balance”.
4] After dishonoure of cheque, complainant issued statutory demand
notice to the accused on 25/02/2018 through RPAD, calling upon them
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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 12/04/2018.
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 himself
(C.W.1) by filing his affidavit in lieu of examinationinchief 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.
Original cheque Exh. 17
Cheque depositing slip Exh. 18
Cheque returned memo Exh. 19
Office copy of Demand notice Exh. 20
Returned envelope along with A.D. card and
postal receipt
Exh. 21
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 25, wherein accused
has taken defence of falsely implication. Accused in support of his
defence neither examined himself nor any witness.
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8] Heard Ld. Advocate for complainant. Inspite of opportunity
given, Ld. Advocate for accused did not argue, hence matter proceeded
further without argument on the part of accused.
9] In view of accusation and evidence on record, 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 mentioned in
memo?
…. In the
affirmative
3. Does complainant further prove that
complainant company 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
10] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque has drawn from the
account of accused and it bears his signature.
AS TO POINT NO. 1
11] 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
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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.
12] 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;
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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.
13] 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
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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 applicable to the accused whenever accused is required to
prove a fact.
14] In order to prove his case, complainant examined himself by
filing his affidavit of examinationinchief at Exh. 15, wherein he has
reiterated his case from the complaint. His evidence shows that, he had
transferred one Innova vehicle in the name of accused along with loan
on it. His evidence further shows that, accused had agreed to pay
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difference amount of Rs. 79,265/ and in order to pay said amount,
disputed cheque was issued by the accused in his favour. Inspite of
opportunity given, Ld. Advocate for accused did not conduct cross
examination of complainant, hence matter proceeded further without
crossexamination of complainant on the part of accused. Thus, oral
and documentary evidence of complainant has gone unchallenged.
Accused in his statement recorded u/s. 313 of Cr.P.C. has denied
issuance of cheque in favour of complainant but he did not lead any
evidence in support of his defence. Record shows that, disputed cheque
has been drawn from the account of accused. Unchallenged evidence of
complainant is sufficient to show that, accused was liable to pay an
amount of Rs. 79,265/ to him and in order to pay said amount,
disputed cheque was issued by him in favour of complainant. Accused
has failed to rebut the presumption u/s. 139 of N.I. Instrument Act. In
result point no. 1 has answered in the affirmative.
AS TO POINT NO. 2 TO 5
15] In order to prove that, cheque was returned unpaid,
complainant has produced on record cheque depositing slip at Exh. 18
and cheque returned memo at Exh. 19. Said memo bears seal of the
bank and signature of bank officer. Therefore, as per section 146 of N.I.
Act, it is to be presumed that, disputed cheque was dishonoured for
reason “Funds insufficient” as mentioned in memo dated 01/02/2018.
16] It is a matter of record that, complainant has sent this
notice on 25/02/2018 i.e. within limitation it appears that, notice has
returned back unserved as not claimed by the accused. Remark on the
envelope of notice shows that, intimation was given to the accused on
27/02/2018. Therefore, it is to be presumed that, notice was served
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upon accused on 27/02/2018. Admittedly, accused has not paid
cheque amount to the complainant after service of notice. It is a matter
of record that, complainant has filed this complaint on 12/04/2018
which is within limitation. In result, point nos. 2 to 5 are answered in
the affirmative.
Hearing on the point of sentence:
17] 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.
18] Upon asking on the point of sentence, accused submitted
that, said cheque was issued for security purpose only. I have already
paid an amount of Rs. 4,50,000/ to the complainant. On the other
hand, Ld. Advocate for complainant submitted that maximum sentence
be imposed on the accused and maximum compensation should be
awarded to the complainant.
19] Heard both parties at length on the point of sentence.
Considering nature of offence, the period since which case is pending,
conduct of the accused as well as other circumstances and considering
purpose of legislature behind enactment of Section 138 of N.I. Act,
accused should be sentenced to imprisonment along with suitable
compensation to the complainant. In result, I proceed to pass following
order :
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ORDER
i. The accused Mr. Irfan Ahmed S/o. Mohd. Bashir 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 he shall pay compensation of Rs. 1,20,000/
(Rs. One Lac Twenty 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 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. 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
the Code of Criminal Procedure, 1973.
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vii. Accused is informed about having his right to prefer appeal
against this judgment within a statutory period before Hon'ble Sessions
Court.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 01/09/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 01/09/2023
Typed On : 01/09/2023
Signed On : 01/09/2023
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