Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 2013/SS/2018
Filed on : 02/05/2018
Registered on : 02/05/2018
Decided on : 21/09/2022
Duration : 04Y. 04M. 19D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 2013/SS/2018
CNR: MHMM190051962018
Exh. No.
M/s. AKD Engineering & Infra Pvt. Ltd.
Through its director, Mr. Ashish Dubey
having office at Room No. 6,
Bhatt building, Old Nagardas Road,
near Vrindavan Hotel,
Andheri (E), Mumbai – 400 069. ...Complainant
V/s.
1. M/s. Dhuria Offshore Sea Engineering Pvt. Ltd.
Having registered office address at,
103, A wing, Rajput CHS Ltd.,
W E Express Highway, Dahisar (E),
Mumbai – 400 068.
2. Mr. Tribhuvan Dhuria,
Director of M/s. Dhuria Offshore Sea Engineering Pvt. Ltd.
Having registered office address at,
103, A wing, Rajput CHS Ltd.,
W E Express Highway, Dahisar (E),
Mumbai – 400 068.
&
R/a, Akanchha Complex,
Om Sai Dutt CHS, Ltd., BWing,
Flat No. 204, Laxmiben Chedda Marg,
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Nalasopara (W), Thane 401203.
3. Mrs. Rashmi Dhuria.
Director of M/s. Dhuria Offshore Sea Engineering Pvt. Ltd.
Having registered office address at,
103, A wing, Rajput CHS Ltd.,
W E Express Highway, Dahisar (E),
Mumbai – 400 068.
&
R/a, Akanchha Complex,
Om Sai Dutt CHS, Ltd., BWing,
Flat No. 204, Laxmiben Chedda Marg,
Nalasopara (W), Thane 401203. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Shri. A. S. Upadhyay for the complainant.
Advocate Shri. Tanaji Londhe for the accused.
JUDGMENT	JUDGMENT
(Delivered on 21/09/2022)
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] Complainant is a company registered under companies Act 1956
and filed this complaint through its director and authorized
representative. Accused no. 1 is also a company, while accused no. 2
and 3 are its directors. Complainant is engaged in the business of
construction and engineering projects. In the month of December 2016
accused no. 2 and 3 on behalf of accused no. 1 approached to
complainant and represented that they have procured a contract/work
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order for laying down cables of reliance Jio in Uttar Pradesh and further
shown desire to assign some work to the complainant company as a
subcontractor. Accordingly, agreement was executed between the
parties to that effect. Accused had promised to make the payment of
work within 45 days from the date of issuance of bill. Accordingly,
complainant company completed the entire work and submitted bill for
an amount of Rs. 31,47,245/. However, after 45 days also accused did
not make payment. Finally, accused issued cheque bearing no. 040191,
040192 and 040193 for an amount of Rs. 7,65,902/, 13,16,511/ and
10,64,833/ respectively dated 14/03/2018 drawn on ICICI Bank,
Andheri Western Express Highway Branch.
3] Complainant presented said cheque for clearance with its banker.
However, vide memo dated 18/03/2018, cheque returned unpaid with
remark “Funds Insufficient”.
4] Thereafter, complainant issued statutory demand notice, dt.
28/03/2015 by RPAD, calling upon accused to pay the cheque amount,
within statutory period given by law. Accused received notice on
03/04/2018, but accused denied their liability and refused to pay vide
their reply dated 24/04/2018. Hence, complainant filed this complaint
against the accused on 02/05/2018.
5] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused were summoned. Post issuance of process,
presence of accused was secured before the court and they were
submitted to bail. Substance of accusation was read over to accused, to
which they pleaded not guilty and opt for trial. Considering nature of
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offence, this case is a tried as a summons trial case.
6] In order to prove guilt of accused, complainant examined its
authorized representative namely Ashish Kumar Dubey (C.W.1) by
filing his affidavit in lieu of examinationinchief at Exh. 20 as per
section 145 of the Negotiable Instrument Act. Complainant also got
examined one Mr. Sandip Kumar (C.W. 2) at Exh. 51. Besides oral
evidence, complainant has relied upon following documentary evidence
that includes:
Sr. No. Description of documents Exh. No.
1. Board resolution Exh. 28
2. Certified copy of minutes dated
27/04/2018
Exh. 29
3. Contract agreement Exh. 30
4. 3 Tax invoices Exh. 31 to 33
5. 3 Original cheques Exh. 34 to 36
6. 3 cheque returned memos Exh 37 to 39
7. Office copy of notice Exh. 40
8. 5 Postal receipts Exh. 41 to 45
9. Returned envelope from the post Exh. 46 and 47
10. Notice from the envelope Exh. 40A
11. Reply notice from accused Exh. 48
7] After closer of complainant's evidence, statement of accused vide
section 313 of Cr.P.C. was recorded wherein accused have denied case
of complainant and taken a defence of falsely implication.
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8] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of accused and written notes of
argument on behalf of complainant. 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 were issued by the accused, in favour
of complainant for discharging legal
enforceable liability?
…. In the
affirmative
2. Does complainant prove that cheque were
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
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.
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REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheques are drawn from the
account of accused and it bears signature of accused no. 2.
AS TO POINT NO. 1
10] 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.
 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
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cheque within 15 days from the receipt of the said notice.
 The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
 The drawer of the said cheque failed to rebut the presumption u/s.
118 and 139 of the N.I. Act.
11] Before going further, it is necessary to mention here that as per
Section 139 of N.I. Act, there is a presumption in favour of holder of
cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
d) as to time of transfer . that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements. that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
f) as to stamp. that a lost promissory note, bill of exchange or
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cheque was duly stamped;
g) that holder is a holder in due course. that the holder of a
negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof, by
means of an offence or fraud, or has been obtained from the
maker or acceptor thereof by means of an offence or fraud, or
for unlawful consideration, the burden of proving that the
holder is a holder in due course lies upon him.
Section 139. Presumption in favour of holder. It shall be
presumed, unless the contrary is proved, that the holder of a
cheque received the cheque, of the nature referred to in Section
138, for the discharge, in whole or in part, of any debt or other
liability.
12] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
Section 139 of the said act plays significant role. In view of express
provision of section 139 of N.I. Act a presumption shall be drawn that
the holder of cheque, received the cheque, of the nature referred to in
Section 138 for the discharge of any debt or other liability unless
contrary is proved. Thus, it gives power to court to presume unless
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contrary is proved that the holder of cheque received the cheque for
discharge in whole or in part of any debt or other liability. The word
“shall presume” as per Section 4 of Indian Evidence Act means
whenever it is directed by this act, that the court shall presume a fact, it
shall regard such fact as a proved unless and until it is disproved. Thus,
the burden of proof as to cheque has not been issued as a legal debt or
liability is always on accused and it is for him to rebut said
presumption. A useful guidance on the said point can be taken from the
verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
13] In order to prove his case, complainant has examined its
representative by filing his affidavit of examinationinchief at Exh. 20,
wherein he has retreated his case from the complaint. His evidence
shows that, as per contract between the parties accused company had
assigned some work to the complainant company for laying down
cables of reliance jio in U.P. His evidence further shows that as per
contract between the parties complainant company completed entire
work assigned to them. His evidence further shows that as decided
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between the parties, he raised various invoices for total amount of Rs.
31,47,245/. His evidence shows that accused were supposed to pay
within 45 days from the date of issuance of bills and accordingly in
order to pay this amount, disputed cheques were issued by the accused.
14] Ld. Advocate for accused took crossexamination of complainant
at considerable length. In crossexamination, it has come on record
that complainant has submitted bills to the accused. All the
bills/invoices filed on record bears acknowledgment on the part of
accused as received. Accordingly, accused company has issued 3
cheques for payment of this amount. It appears that accused has taken
a defence that they have not received payment from Reliance Jio and
due to which, they cannot make payment of complainant. It is admitted
by complainant that, some post dated cheques issued by the accused are
already cleared. Accused has also taken defence that disputed cheques
are deposited by the complainant for clearance without giving any
intimation to the accused. His evidence shows that all three cheques
were signed by the accused in the office of complainant.
15] In his statement recorded U/s. 313 of Cr.P.C., accused no. 2 Mr.
Tribhuvan Dhuria has stated that, complainant has not returned some
material and due to which reliance company has not released the
payment. He also stated that he has already paid an amount of Rs.
2,70,000/ to the complainant through cheque. It is necessary to note
here that, accused has not issued any notice to the complainant, stating
that he has not returned some material of reliance jio and due to which
reliance company has not released payment. In short, accused never put
on record that, some material of reliance jio is in the possession of
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complainant and due to which company has not released the payment.
From perusal of entire crossexamination, it appears that accused has
not raised any probable defence in order to rebut presumption u/s. 139
of N.I. Act. On the contrary, evidence of complainant clearly shows that
he has completed work as per the contract. Thereafter, complainant
has raised the bills and same are duly acknowledgment by the accused.
Besides that some payment is also made by the accused in favour of
complainant. In such circumstances, it becomes clear that accused has
failed to rebut the presumption u/s. 139 of N.I. Act. In result, Point no.
1 is answered in the affirmative.
AS TO POINT NO. 2 TO 5
16] In order to prove that cheques were returned unpaid for
reason “Funds Insufficient”, complainant has relied upon oral evidence
of its representative in addition to documentary evidence i.e. cheque
return memos filed on record at Exh. 37 to 39. Besides that accused in
his statement recorded U/s. 313 of Cr.P.C. has clearly admitted that
disputed cheques were dishonoured for the reason “Funds Insufficient”.
According to him, complainant has presented these cheques for
clearance without giving any intimation to him. Thus, facts remains
that cheques were dishonored for reason “Funds Insufficient”. In
addition to this, complainant got examined Mr. Sandip Kumar (C.W. 2)
Branch Manager of Kotak Mahindra Bank to prove that disputed
cheques were dishonored for the reasons mentioned in memo.
Evidence of Mr. Sandip Kumar clearly shows that cheques were
dishonored for the reason “Funds Insufficient” in the account of
accused. He has produced on record account statement of complainant
for the relevant period. Considering above mentioned oral and
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documentary evidence I have come to conclusion that, cheques in
disputed were dishonored for reason “Funds Insufficient” in the account
of drawer.
17] 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. 40, Postal receipts at Exh. 41 to 45,
returned envelope at Exh. 46 to 47, reply from accused at Exh. 48.
Accused has sent reply to the demand notice of complainant wherein he
has clearly admitted receipt of notice. It is a matter of record that
cheques were dishonored vide memo dated 15/03/2018. Demand
notice was sent on 26/03/2018. It was returned back by giving
intimation to accused dated 03/04/2018. Present complaint is filed
on 02/05/2018 i.e. within limitation from the date of cause of action
arose for filing of this complaint. Demand notice is also sent within
limitation. Admittedly, accused did not pay cheque amount after
service of notice on him. In result point no. 2 to 5 are answered in the
affirmative.
AS TO POINT NO.6
18] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved its claim with
cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
probation to them vide Section 3 to 5 of the Probation of Offenders Act,
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1958. Therefore, the accused is called upon to state on the point of
sentence.
(K. G. Sawant)
Date : 21/09/2022 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
19] Inspite of repeatedly called neither accused nor his
advocate appeared in this matter. Record shows that accused is
avoiding to remain present in the matter without any justifiable
reasons. Therefore, I am constrained and compelled to proceed with
the judgment in absence of accused. By his conduct accused has waved
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.
20] 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
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, I proceed further in the absence of accused. On point of
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sentence Ld. advocate for complainant has submitted that, accused be
directed to pay maximum compensation to the complainant and he also
prayed to impose a maximum punishment to the accused.
21] In this matter, cheque was issued in the year 2018. Almost four
years have been passed from issuance of cheque. In such
circumstances, sentence of imprisonment along with adequate
compensation to the complainant will meet the ends of justice.
Considering nature of offence, conduct of the accused, the period from
which matter is pending, I proceed to pass following order:
ORDER
i. The accused No.1 M/s. Dhuria Offshore Sea Engineering
Pvt. Ltd., accused no. 2. Mr. Tribhuvan Dhuria and accused
no. 3. Mrs. Rashmi Dhuria are 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 No. 2 and 3 are sentenced to suffer simple imprisonment
for period of Three Months each and they shall pay jointly or severally
compensation of Rs. 50,00,000/ (Rs. Fifty Lacs) to the complainant
vide Section 357(3) of the Code of Criminal Procedure, in default of
payment of compensation, accused shall suffer further simple
imprisonment for the period of 15 days each.
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 their bail bond.
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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 in view of Section 418 (2) of Cr.P.C., issue standing Nonbailable
warrant against the accused for their arrest through concerned police
station for execution of sentence.
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. 21/09/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 21/09/2022
Typed On : 21/09/2022
Signed On : 21/09/2022
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