Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 /25 C. C. No. 1998/SS/2018
Filed on : 27/04/2018
Registered on : 27/04/2018
Decided on : 16/07/2022
Duration : 03Y. 02M. 19D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 1998/SS/2018
CNR: : MHMM19005148 2018
Exh. No.
Mr. Rajendra Madhukar Sawant.
Age : 58 years, Occu : Business
Residing at : 30/31, Juhu Ashish CHS. Ltd.,
JVPD Scheme, 10th Road,
VileParle (W), Mumbai – 400 049 ...Complainant
V/s.
1] M/s. Supplier Mayur Mango
At C 101, K. N. Classic Apartment,
Cwing, Room No. 101, Teli, Khadape
Vathar Road, Ratnagari 415 616
2] Mr.Sandeep Yashwant Pawaskar
Proprietor/Authorized Signatory of
M/s. Supplier Mayur Mango
At C101, K. N. Classic Apartment,
Cwing, Room No. 101, Teli Khadape
Vathar Rd., Ratnagiri 415 616
3] Mrs. Vijaya Sandeep Pawaskar
At C101, K. N. Classic Apartment,
CWing, Room No. 101, Teli,
Khadape Vathar Road, Ratnagiri 415 616. ...Accused
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Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Smt. Madhuri Gaikwad for the complainant.
Advocate Shri. R. K. Kushwah for the accused.
JUDGMENT	JUDGMENT
(Delivered on 16/07/2022)
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.)
Case of the complainant in nutshell is as under :
2] It is the case of complainant that, complainant was in
search of residential premises/plot in and around the Ratnagiri.
Accused No. 2 is the proprietor and authorized signatory of accused no.
1 proprietary firm. It is further case of complainant that, accused no. 2
and 3 came to know about the desire of complainant to purchase the
residential premises somewhere at Ratnagiri and hence, they
approached to the complainant, with proposal to purchase their plot.
Accused are engaged in the business of supplying mango under the
name and style of M/s. Supplier Mayur Mango. They informed to
complainant that, they have one residential plot having clear
marketable title.
3] It is further case of complainant that, accused no. 2 and 3
informed to him that, Mr. Sandeep Pawaskar is absolute owner and
possessor of one residential premises, having address as C101, K. N.
Classic Apartment, CWing, Room No. 101, Teli Ali, Khadpe, Wathar
Road, Ratnagiri, 415616 (said property is hereinafter referred as said
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flat). They also informed to complainant that, accused no. 3 is absolute
owner and possessor of plots having Survey No. 296, Hissa No. 03 and
Survey No. 320, Hissa No. 06, admeasuring approximately area 0130
and 00694, situated at village Mauje Zadgaon, Nagar Parishad
Ratnagiri.
4] It is further case of complainant that, after negotiation
between the parties, accused agreed to sale out said properties to the
complainant for valid consideration of Rs. 25,00,000/. It is the case of
complainant that, as per demand of accused, he paid Rs. 25,00,000/ in
cash on the same day. Accordingly, accused no. 2 and 3 executed
agreement to sale dt. 29/06/2017 in favor of complainant. Inspite of
repeated follow up by the complainant, to get executed sale deed,
accused persons avoided to execute it stating that, they want to obtain
NOC of other family members. On assurance of accused, complainant
waited till December2017 and thereafter again requested to execute
the sale deed. However, accused did not execute sale deed in favor of
complainant. Finally, accused agreed to repay the amount of
complainant alongwith compensation of Rs. 5,00,000/. Therefore, they
issued 2 cheques in favor of complainant, bearing cheque no. 017737,
dt. 17/02/2018, for an amount of Rs. 25,00,000/ and 017738/ dt.
17/02/2018, for an amount of Rs. 5,00,000/ drawn from account of
accused no. 1, maintained with Bank of Maharashtra, Ratnagiri Pawas
Branch.
5] As per instruction of accused, complainant presented
cheque no. 017737, for an amount of Rs. 25,00,000/ for clearance in
his bank account, namely Saraswat Cooperative Bank Ltd, Andheri
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West Branch. However, said cheque was returned unpaid vide bank
memo dt. 21/02/2018 for reason “FUNDS INSUFFICIENT”.
6] Thereafter, complainant issued legal demand notice to the
accused on 16/03/2018, calling upon him, to pay cheque amount
within 15 days from the date of service of notice on them. The said
notice was duly served upon accused but, accused did not pay cheque
amount within statutory period. As due amount is not arranged,
complainant left with no other option, than to knock the doors of the
court seeking justice and ipso Jure case came before this court.
7] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused was summoned. Post issuance of process,
presence of accused was secured before the court and he was submitted
to bail. Substance of accusation was read over to accused, to which
they pleaded not guilty and opt for trial. Considering nature of offence,
this case is a tried as a summons trial case.
8] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 15 as per
section 145 of the Negotiable Instrument Act. So also he got examined
one Mr. Sanjay Chandrakant Pangerkar (C.W. 2) at Exh. 34. Besides
oral evidence, complainant has relied upon following documentary
evidence that includes:
Sr. No. Description of documents Exh. No.
1. Original agreement Exh. 17
2. Original cheque Exh. 18
3. Cheque returned memo Exh. 19
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4. Office copy of demand notice Exh. 20
5. Postal receipts Exh. 21 to 25
6. A. D. Cards. Exh. 26 to 28
9] After closer of complainant's evidence, statement of accused vide
section 313 of Cr.P.C. was recorded vide Exh. 45 and 46, wherein
accused no. 2 and 3 have taken defence of falsely implication.
10] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of complainant at Exh. 51 and written
notes of argument filed on behalf of accused at Exh. 53.
11] 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 “Funds
Insufficient”?
…. In the
affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
…. In the
affirmative
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amount ?
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 No.
2 is convicted
while
accused no. 3
is acquitted.
REASONS
Admitted/undisputed fact
12] 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.
AS TO POINT NO. 1
13] 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.
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 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.
14] 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
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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
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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15] 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
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rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
16] In order to prove his case, complainant has examined himself by
filing his affidavit of examinationinchief at Exh 15 and he also got
examined Mr. Sanjay Pangerkar (C.W. 2) by filing his affidavit of
evidence at Exh. 34. Complainant through his evidence on affidavit has
reiterated his case from the complaint. His evidence shows that he
intents to purchase some property in the vicinity of Ratnagiri. His
evidence further shows that, accused no. 2 and 3 approached to him
and shown their property and accordingly after negotiations, he agreed
to purchase property for an amount of Rs. 25,00,000/.
17] His evidence further shows that agreement between the parties
was executed on 29/06/2017 in respect of said property in favour of
complainant. Said agreement was signed by accused no. 2 and 3 in
presence of complainant. His evidence further shows that an amount of
Rs. 25,00,000/ was paid by complainant to the accused in cash against
the said transaction. However, accused avoided to executed sale deed
of said property saying that they required No objection certificate of
other family members. According to him, finally accused failed to
maintain their promise but they agreed to repay the amount along with
compensation of Rs. 5,00,000/. Thus, they issued two cheques bearing
no. 017737 for an amount of Rs. 25,00,000/ and 017738 for an
amount of Rs. 5,00,000/ in favour of complainant for discharging legal
enforceable liability.
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18] His evidence shows that out of which first cheque for an amount
of Rs. 25,00,000/ was deposited by him for clearance with his banker.
However, it returned unpaid for a reason “Funds Insufficient”.
According to complainant, Mr. Sanjay Pangerkar was witness to said
transaction. Evidence of Mr. Pangerkar also shows that entire
transaction was taken place in this presence and disputed cheque for an
amount of Rs. 25,00,000/ was issued by the accused in favour of
complainant for repayment of consideration amount since transaction
was canceled.
19] Ld. Advocate for accused took crossexamination of complainant
as well as his witness at considerable length. It appears that
complainant is crossexamined at length about his earning, financial
capacity etc. It is admitted by complainant that, said transaction was
not taken place with accused no. 1 i.e. M/s. Supplier Mayur Mango and
others. It is also admitted by the complainant that disputed property is
not owned by accused no. 1. He further stated that he don't know t hat
accused no. 1 is not the partnership firm but it is the proprietorship
concern. As per agreement, if vendor refund the consideration amount
of Rs. 25,00,000/ with 18% interest p.a. within period of one month
from 29/06/2017, in that case agreement was to be treated as canceled.
According to complainant, amount was given on 29/06/2017. He
further admitted that he did not send any notice to accused requesting
them to execute the sale deed in his favour. It was also suggested to
complainant that he is engaged in the business of money lending,
however said suggestion is denied by the complainant. Accused has
also denied execution of notarized agreement in favour of complainant
on 29/06/2017. Thus, from entire crossexamination of complainant
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and witness and through argument of accused, it appears that accused
has taken a following defence:
a) Complainant has not given an amount of Rs. 25,00,000/
to the accused against the transaction of sale of property.
b) Generally entire consideration amount of property is not
given at the time of execution of agreement to sale but it is
given at the time of execution of sale deed. In the case at
hand, as per case of complainant he has paid entire
consideration amount of Rs. 25,00,000/ to the accused
though sale deed was not executed, is appears to be
doubtful and not supported by any evidence.
c) Complainant had obtained 10 blank signed cheques and
blank signed papers from the accused in the year 2017 as a
security on promise to finance him.
d) No documentary evidence regarding payment of Rs.
25,00,000/ is produced on record and thus case of
complainant is doubtful.
e) accused no. 3 Vijaya Pawaskar is not at all concerned with
said transaction and disputed cheque is neither signed by
her nor issued from her account.
f) Said alleged transaction was not taken place between
complainant and accused no. 1 and hence cheque issued
from account of accused no. 1 cannot be treated as a
issued for discharging legal enforceable liability.
20] Statement of accused u/s .313 of Cr.P.C. was recorded and in
support of statement, accused has submitted their written statement,
wherein it is stated that in the year 2017 he was in need of money and
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he got knowledge that complainant gives loan to the needy person on
interest basis. Accordingly, he approached to complainant for loan and
complainant agreed to give loan on condition that, accused should give
some security for repayment of said loan amount. He further stated
that as a security for loan amount complainant obtained blank signed
disputed cheque, 3 more blank signed cheques, blank signed paper and
power of attorney in favour of Mr. Sanjay Pangarkar in relation to
disputed property. He further stated that after execution of power of
attorney in favour of Mr. Pangarkar and after handing over blank signed
cheques, complainant avoided to give loan to him. Therefore, he
canceled the registered power of attorney executed in favour of Mr.
Pangerkar. According to him, after two months from there,
complainant misused the blank signed cheques and blank signed papers
taken from him by way of security for the loan.
21] Thus, through written statement accused has tried to say that
disputed cheque was given by him in favour of complainant as a
security for loan transaction but complainant did not give loan to him.
He also tried to say that power of attorney in relation to their property
was also executed in favour of Mr. Pangerkar as a security for loan.
Since, complainant did not give loan, he canceled the power of attorney
executed in favour of Mr. pangerkar.
22] From the perusal of above referred evidence on record. It
becomes clear that, accused has not denied issuance of cheque in
favour of complainant as well as his signature on the cheque. He also
admitted his signature on disputed agreement and execution of power
of attorney in favour of Mr. Pangerkar to sale the property to the
complainant. If it is the contention of accused that, all these documents
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were executed by way of security for repayment of loan amount, which
was never disbursed, in favour of complainant, then it is for the accused
to prove said defence. There is sufficient evidence on record to raise
presumption u/s. 139 of N.I. Act in favour of complainant that disputed
cheque was issued by accused for discharging legal enforceable liability.
It is for the accused rebut the said presumption by adducing probable
evidence to that effect.
23] According to accused, complainant did not give loan to him,
though he handed over blank signed cheques, blank signed papers and
executed power of attorney in favor of Mr. Sanjay Pangerkar as a
security for loan, hence he canceled said power of attorney. Accused
did not produce anything on record to show that said power of attorney
was canceled. If, Power of attorney was canceled by giving the notice,
then certainly it was for the accused to mention in that notice about
issuance of blank signed cheques in favor of complainant. Accused
neither produced that notice or anything else to show that said power of
attorney was canceled by him. So, stand of the accused that,
complainant did not give loan to him and due to which he canceled the
Power of attorney is not appears to be reliable defence and same is not
supported by probable evidence.
24] It is true that, entire amount is given by the complainant through
cash and he did not produce any documentary evidence on record to
show that said amount was given to the accused. However, there is an
agreement between the parties, which shows that, accused has admitted
acceptance of an amount of Rs. 25,00,000/ from the complainant and
possession of said property was also handed over to the complainant.
According to accused, said agreement to sale is not reliable document
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and same is not executed before the notary. However, accused neither
examined the notary nor he did lead any other evidence to show that
agreement executed between the parties is false and forged document.
25] Learned Advocate for accused, in support of his argument has
relied upon judgment passed by Hon'ble Bombay High Court in case of
Rajendra Halarnkar V/s. Anastazia Maria De Lourdes Ana
Florentina De Freitas Souza Ticlo, In this matter before Hon'ble High
Court, complainant had agreed to purchase property from accused and
accordingly he had paid an amount of Rs. 10,00,000/ to her as a
advanced payment. Memorandum of Understanding was also executed
between the parties. As per said MoU, accused was supposed to clear
the title of property within 5 months and in case of failure , he was
liable to pay double of the amount of said advance. However, accused
failed to clear the title and hence he issued cheque for an amount of Rs.
2,00,000/ in favour of complainant. Said cheque was dishonored and
hence complaint was filed before the court. In this matter trial court
acquitted the accused holding that complainant has failed to prove
existence of legal debt. In this matter Hon'ble High Court has observed
that MoU is typed on nonjudicial stamp paper of Rs. 100/ only and no
witness on the said document is examined and in such circumstances
said MoU cannot be relied upon. While upholding the acquittal of
accused, Hon'ble High Court in para no. 13 of the judgment has
observed as under :
“As has been rightly held by the learned Trial Magistrate that though
all the preconditions required for launching valid prosecution i.e
issuance of cheque in the account maintained by accused, its
presentation during the period of validity, its dishonour for insufficient
funds in the account of the accused, giving of legal demand notice,
receipt of the same by the accused and filing of the complaint within
prescribed time, have been fulfilled, however, the main condition of
the existence of legally enforceable debt, has not been proved. Though
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in the handwritten reply given by the accused to the complaint, it is
mentioned that she gave two cheques, one for Rs. 9,50,000/ which
the complainant cleared on 8/4/2010 and the second for Rs.
2,00,000/ for the amount of Rs. 50,000/ which she owed to the
complainant plus interest, however, she has further stated therein that
subsequently she had phoned the complainant and had told him not to
deposit the cheque as she had not sold the property and would inform
him as and when she sells the same and the complainant told her to
take cheque of Rs. 2,00,000/ and give him one of Rs. 50,000/. Thus,
at the end of the said handwritten letter, the accused has stated that
she would pay the remaining Rs. 50,000/ which she owes to the
complainant and that she does not have extra cash to pay an
exorbitant amounts. Thus, it cannot be said that the accused had
admitted debt of Rs. 2,00,000/. The learned trial Magistrate has
rightly held that the complainant failed to prove the existence of legal
debt of the sum of Rs. 2,00,000/ as on the date of issuance of
disputed cheque. In the case of “Laxmikant D. Naik Karmali v. Shri
Santosh D. Naik, [2006 (2) gOA l.r 251] and in the case of “Vividha
Urban Cooperative Credit Society Limited,” [2010 (2) Goa L.R 1], this
Court has held that where the subject cheque was issued fro more
amount than due to the complainant, the acquittal on that count
cannot be faulted. The complainant, even otherwise, as rightly held by
the Trial Magistrate, did not approach the Court with clean hands. The
accused, in my view, has been rightly acquitted of the offence
punishable under section 138 of the Act. No interference is therefore
called for with the impugned Judgment and Order.”
From perusal of ratio laid down by Hon'ble Bombay High Court it
appears that, accused was acquitted by the Hon'ble High Court
observing that, complainant has failed to prove existence of legal debt
of Rs. 2,00,000/ as on the date of issuance of disputed cheque and
Court also observed that, if subject cheque is issued for more than due
to the complainant, an acquittal on that count cannot be faulted. Thus,
Hon'ble Court has acquitted the accused observing that, accused was
not liable to pay Rs. 2,00,000/ but, Rs. 50,000/ only.
26] Secondly, he relied upon another judgment of Hon'ble Bombay
High Court, in the case of Ananta Bondre V/s. Alfred David
Fernandes, In para No. 28, Hon'ble High Court has observed as under :
“The contents of the statutory notice given to the accused by the
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complainant under Section 138(b) of the Act and the contents of the
complaint which followed the said notice can certainly be relied upon by
the accused to show that the presumptions stand rebutted. In the said
statutory notice and in the complaint, the complainant has stated that in
the last week of January, 2005, the accused agreed to sell to the
complainant five trucks for consideration of Rs.16,00,000/ for each of
the trucks and towards part payment of the said oral agreement, the
complainant paid to the accused a total sum of Rs.7,50,000/. The
averments made in the complaint are the foundation for leading
evidence in the matter. Though in his affidavitinevidence the
complainant (PW1) stuck to his complaint, however in his cross
examination, he created a lot of confusion which creates doubt about
truthfulness of the case of the complainant. Here, he has stated that in
September, 2004, initial talks regarding sale of five trucks took place.
Neither in the statutory notice nor in the complaint, it has been averred
that there were initial talks regarding the sale of five trucks, in
September 2004. In the statutory notice, complaint and affidavitin
evidence, it is nowhere mentioned that 'Siddhi Enterprises' a proprietary
concern fully owned and managed by the wife of the complainant was
also involved in the transaction and giving of money to the accused. In
his crossexamination, initially, PW1 specifically stated that there is no
connection between the business of Siddhi Enterprises and the
transaction of sale of trucks between him and the accused. But
subsequently, in his cross examination, PW1 brought in Siddhi
Enterprises in the transaction as having given Rs.3,20,000/ to the
accused, towards the transaction of the trucks. The complainant clarified
that besides the transaction pertaining to the trucks, he and/or Siddhi
Enterprises did not have any other transaction with the accused. He
further stated that he had directly given to the accused a total sum of
Rs.8,00,000/. There was no doubt in the mind of the complainant about
the said amount. He has clarified that of the said amount, an amount of
Rs.3,20,000/ was directly paid to the accused from the account of
Siddhi Enterprises; amount of Rs.1,80,000/ was paid to J. K. Tyres
which is the proprietorship firm of brother of the accused; a sum of
Rs.2,00,000/ was directly paid to the accused from his own account and
that he had given another Rs.1,00,000/ to the brother of the accused.
That makes the total of Rs.8,00,000/. All the above is totally contrary to
the case as has been set out in statutory notice, the complaint and the
affidavitinevidence. First of all, the total amount allegedly paid by the
complainant towards the transaction of the trucks, which was
Rs.7,50,00/ only as per the notice, complaint and affidavitin evidence
became Rs.8,00,000/ in the crossexamination of the complainant. Next
though the entire amount of loan, as per the notice, complaint and the
affidavitinevidence was paid to the complainant, in the cross
examination the stand changed and it was alleged by the complainant
that an amount of Rs.1,80,000/ was paid to J. K.Tyres, which he alleged
to be the proprietorship concern of the brother of the accused and
further amount of Rs.1,00,000/ was also given to the brother of the
accused. At one stage it was 'J. K. Tyres', a proprietorship firm and at the
other stage it was J. K. Industries Ltd., a company. There is no
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convincing evidence on record to establish the nexus of the accused to
this firm or company, as the case may be. Then, as already stated above,
Siddhi Enterprises, a proprietary concern fully owned and managed by
his wife also landed into the transaction. Therefore first of all, there is no
certainty as to whether the amount that was advanced as loan to the
accused was Rs.7,50,000/ or Rs.8,00,000/ and also there is no
certainty as to who had given that amount and to whom. Apparently, in
order to come out of this confusion, a suggestion was later on put to
DW1(accused) that he and his brother Stanley Fernandes are doing
business together and had purchased tyres from J. K. Enterprises at
Panaji and that the amount due to be paid to said J. K. Enterprises was
Rs.1,80,000/ and the accused had instructed PW1 to issue a cheque in
the name of J. K. Enterprises, for an amount of Rs.1,80,000/. Thus, the
third name 'J.K. Enterprises' came in. As has been rightly held by the trial
Court, there is no evidence to show the connection between J. K. Tyres
and J. K. Industries or to connect them with the accused. There is also no
evidence to show connection of J. K. Enterprises with the other two
concerns or to connect the same with the accused. The above infirmities
are not minor to be discarded on the strength of presumption under
Section 139 of the Act. They ably shake the said presumption to lead the
Court to hold that the same is rebutted.”
27] He further relied upon judgment passed by Hon'ble
Supreme Court in the Case of Tedhi Singh V/s. Narayan Dass Mahant,
2022 SCC Online SC 302, Para no. 4, and 7.
4. She would therefore, point out in the facts of this case when the
complainant was crossexamined, he had stated that the transaction took
place on a particular date, namely, 5th of August, 2011 and he also
deposed as follows:
“….. The money was demanded in first week of August on the
same date only. I had given money in August. I do not remember
the date. Accused had demanded money from me on 5th August. I
have my bank accounts in State Bank Kullu, ICICI Kullu, PNB Kullu
and Gramin Bank Kullu also. I cannot tell from where I had
withdrawn the money. I had withdrawn Rs.2 or 2.5 lacs. The rest
of the money was with me, which I had given. Accused had given
me the cheque in the end of August. When he gave me the cheque,
then also only both of us were there. I have not brought the
statement of account with me. It is wrong that Accused is not
known to me. It is also wrong that Accused has not taken any
money from me. It is also incorrect that I do not have the financial
position or capacity to pay such amount of money. It is also
incorrect that Accused had not demanded any money from me. It
is also incorrect that I had not given any money to the accused. I
do not know that the accused had lost his cheque book.
Volunteered that the accused had himself given me the cheque. It
is also incorrect that I had filled my name and amount in the lost
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cheque with accused had signed and kept for his family members
to withdraw money in case of need and I had presented the said
forged cheque. I had received reply to the notice. It is incorrect
that I have presented a false case on the basis of a forged cheque.”
7. It is true that this is a case under Section 138 of the Negotiable
Instruments Act. Section 139 of the N.I. Act provides that Court shall
presume 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. This presumption, however, is expressly made
subject to the position being proved to the contrary. In other words, it is
open to the accused to establish that there is no consideration received.
It is in the context of this provision that the theory of ‘probable defence’
has grown. In an earlier judgment, in fact, which has also been adverted
to in Basalingappa (supra), this Court notes that Section 139 of the N.I.
Act is an example of reverse onus [see (2010) 11 SCC 441). It is also
true that this Court has found that the accused is not expected to
discharge an unduly high standard of proof. It is accordingly that the
principle has developed that all which the accused needs to establish is
a probable defence. As to whether a probable defence has been
established is a matter to be decided on the facts of each case on the
conspectus of evidence and circumstances that exist.
28] It is necessary to note here that in first judgment from the case of
Rajendra Harlankar (Supra), relied upon by Ld. Adv. for accused,
Hon'ble High Court has acquitted the accused only on the ground that,
accused was not liable to pay Rs. 2,00,000/ i.e. the cheque amount and
cheque amount was more that actual liability. In second case of Ananth
Bondre (Supra) , Hon'ble High Court has acquitted the accused on the
ground that, there is a infirmity in the evidence of complainant. At one
place he stated that, he gave Rs. 8,00,000/ to accused, later on he
stated to give Rs. 7,50,000/ and in crossexamination he mentioned
different amount. Besides that, out of said amount some amount was
given to the brother of accused and thus, facts of above mentioned 2
cases before Hon'ble High Court are different than facts of the case at
hand. So far as last ruling from the case of Tedhi Singh (Supra) is
concerned, Hon'ble High Court has laid down a law that, accused has to
establish a probable defence. Whether, defence raised by the accused is
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probable is matter to be decided on the facts of each case considering
evidence and circumstances that exist.
29] It is necessary to note here that Mr. Pangerkar (C. W. No. 2) has
stated in crossexamination that, an amount of rs. 25,00,000/ was
given by complainant to the accused in his presence. He further stated
that, said amount was deposited by the accused in his account
maintained with Bank of Maharashtra. If, complainant has specifically
stated that said amount is deposited by the accused in his bank account,
then it was for the accused to produce his account statement to show
that such amount was not received by him.
30] It is also argument of Ld. Advocate for accused that
accused no. 1 is not at all concerned with said transaction or disputed
land is not owned by accused no. 1. Hence, cheque drawn from
account of accused no. 1 cannot be said to have been issued for
discharging legal enforceable liability. It is necessary to note here that,
accused no. 1 is proprietorship concern and Mr. Sandip Pawaskar is its
proprietor. Proprietorship is not a different entity like partnership firm
or company. In case of proprietorship there is a sole proprietor and
hence cheque issued by such proprietor on behalf of firm, though not in
relation to transaction of firm, is to be treated as a issued by the
proprietor for any of his transaction. Hence, accused cannot be
acquitted on the ground that cheque was issued from the account of
firm.
31] As discussed earlier, it is true that, complainant has not
given evidence about transferring or giving an amount of Rs.
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25,00,000/ to the accused. However, there is other supported
evidence such as, agreement, Registered Power of attorney, etc. accused
has not denied his signature from the agreement. If it is the contention
of accused that, power of attorney was canceled by him since it was
executed for a security purpose only against the proposed loan, in that
case, it was for the accused to mention in that notice about issuance of
blank signed cheque and blank signed papers. He should have
demanded back his blank signed cheques and blank signed papers,
when he canceled the Power of attorney executed in favor of Mr.
Pangerkar. Thus conduct of the accused to kept silent till filing of this
case about issuance of blank signed cheques and blank signed papers as
a security against the loan, which he has not received, is not appears to
be normal conduct. Accused has failed to rebut the presumption U/sec.
139 of Negotiable Instrument Act. Hence, Point No. 1 is answered in the
affirmative.
AS TO POINT NO. 2 TO 5
32] In order to prove that cheque was returned unpaid for
reason “Funds Insufficient”, complainant has relied upon his own oral
evidence in addition to documentary evidence i.e. cheque return memo
filed on record at Exh. No. 19. Said memo clearly shows that cheque
was returned unpaid for a reason “Funds Insufficient” in the account of
drawer. In crossexamination of complainant, Accused has not denied
fact of dishonor of cheque. In fact, he did not put any question to the
complainant about the dishonor of cheque. Therefore, unchallenged
oral evidence of complainant supported by bank memo is sufficient to
say that, cheque was dishonored for a reason “Funds Insufficient” in the
account of drawer.
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33] In order to show that statutory demand notice was issued
to accused within statutory period, complainant has filed on record
office copy of notice at Exh. 20. Postal receipts at Exh. 21 to 25, Postal
acknowledgement card at Exh. 26 to 28. All these things shows that
notice was duly served upon accused. Accused has not denied his
address or service of notice upon him. Record shows that, cheque was
dishonor vide memo dt. 21/02/2018. Notice was sent on 17/03/2018.
Complaint is filed on 27/04/2018. Thus, it becomes clear that, demand
notice was sent within limitation after dishonor of cheuqe. So also
complaint was filed within limitation. Admittedly accused did not pay
cheque amount to the complainant till today. In result point nos. 2 to 5
are answered in the affirmative.
AS TO POINT NO.6
34] 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. However, it is the contention of
accused that, accused no. 3 Vijaya Pavaskar is not at all concerned with
the said transaction. Record shows that, disputed cheque is drawn from
the account of supplier Mayur Mango. Complainant doesn't know that,
accused no. 1 is a proprietorship firm and accused no. 2 Mr. Sandeep
Pawaskar is its proprietor. From perusal of cheque it appears that, on a
cheque stamp of Mayur Mango Suppliers is put and below that, name of
accused no. 2 is shown as a proprietor. Which shows that, accused no. 1
is a proprietorship firm and accused no. 2 is its proprietor. Accused no3
Vijaya Pawaskar is not appears to be concerned with accused no. 1.
Hence, Accused no. 3 is entitled for acquittal. The offence P/u/s. 138 of
the Negotiable Instruments Act is established against the accused No. 2
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only as a proprietor of Supplier Mayur Mango. 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 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 : 16/07/2022 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
35] 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.
36] Upon asking on the point of sentence, the accused and his
advocate has submitted to take lenient view. On the other hand Adv. for
complainant Submitted that, maximum punishment should be imposed
against the accused.
37] Having heard both parties at considerable length and Considering
facts of this case, it appears that disputed cheque was given by the
accused in the year 2018. 4 years have been passed from the date of
giving cheque to the complainant. In such circumstance, considering
purpose of legislature behind the enactment of section 138 of N. I. Act,
facts of this case, the period since which matter is pending, economic
condition of accused and interest of the complainant, I am of the view
that following sentence would meet the ends of the justice. In result, I
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proceed to pass following order:
ORDER
i. The accused Mr. Sandeep Yashwant Pawaskar Proprietor of
Supplier Mayur Mango 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
Six months and he shall pay compensation of Rs. 30,00,000/ (Rs.
Thirty Lac 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 1
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 No. 3 Vijaya Sandeep Pawaskar is hereby acquitted for
the offence punishable under section 138 of the Negotiable Instrument
Act, 1881 vide section 255(1) of the Code of Criminal Procedure, 1973.
v Bail bond of accused No. 3 stands cancelled.
vi 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 437A
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of the Code of Criminal Procedure. Said bail bonds shall be in force for
Six Months.
vii. Accused No. 2 to surrender his bail bonds.
viii. 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.
ix. 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.
x. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 16/07/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 16/07/2022
Typed On : 16/07/2022
Signed On : 16/07/2022
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