Final Order 1

Order Details: Copy  of Judgment
Pdf Text: (1) CC. No.2506/SS/2018
CNR No.MHMM19-006370-2018
[Judg.]
Received on : 19/06/2018
Registered on : 21/06/2018
Decided on : 05/03/2021
Duration : Yrs. Mnts Days
02 08 16
IN THE COURT OF METROPOLITAN MAGISTRATE,
[63RD COURT, ANDHERI, MUMBAI]
[PRESIDED OVER BY S.A.R. SAYED]
C.C. No.2506/SS/2018 Exh.26
Sinodh Bachchulal Chauhan
R/at : Room No.2,
Chandshah Wali Dargah Road,
Paspoli Village, Nitie, Powai,
Mumbai-400 087. ...Complainant
Vs.
Amit Laleshwar Singh
R/at : Jagruti Mitra Mandal Chawl,
Galli No.2, Near-Noori Branch Centre,
Morarji Nagar No.3, Saki Aarey Road,
Nitie, Powai, Mumbai-400 087. ...Accused
____________________________________________________________
Advocate for Complainant : Shri. S. N. Imam
Advocate for accused : Shri. Subash Upadhyay
____________________________________________________________
J U D G M E N T
(Delivered on 5th day of March, 2021)
1. Accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred to
as the N.I. Act).
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2. Complainant’s case :
Complainant and accused are acquainted with each other
from several years. Accused was facing financial crises, he approached
complainant for financial help. Accordingly, complainant advanced
amount of Rs.50,000/- each on 05/02/2014, 03/06/2015, 09/11/2016
and on 10/09/2017 (total amount of Rs.2,00,000/-). Towards
discharge of said liability, accused issued two cheques bearing
No.225392 and 225393 dated 14/02/2018 for Rs.1,00,000/- each
drawn on State Bank of India, Vihar Lake branch. These cheques were
presented for encashment by the complainant. They returned by the
banker with remark ‘Payment Stopped by Drawer’. The complainant
issued demand notice against the accused on 22/05/2018 by R.P.A.D.
The envelop containing the demand notice sent to the accused was
returned with remark ‘Refused’. It is stated that, despite of service of
demand notice, accused failed to make payment of cheque amount.
Therefore, complainant instituted above complaint against accused for
the offence punishable under Section-138 of the N.I. Act.
3. My Learned Predecessor issued summons to accused.
Particulars of offence punishable under Section 138 N.I.Act., were
explained at (Exh.8) to which he pleaded not guilty. After recording of
complainant's evidence, statement of accused was recorded under
Section 313 (1)(b) of Cr.P.C. at (Exh.14).
Defence :
4. It is the defence of accused that, he is falsely implicated in
this case.
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5. The case has been tried as summons case by my learned
predecessor. She did not record just the substance of evidence. But,
evidence is recorded into several pages. The procedure as contemplated
from Sections 262 to 264 of Cr.P.C. for conduct of trial in summary
manner is not observed by her. Therefore, there is no question of recall
or re-examination of any witnesses examined by her.
6. Perused the records. Heard both the sides at length.
Perused written notes of argument filed by both sides at (Exh.23 and
25). Following points arise for my determination and my findings
thereon are recorded for the reasons discussed below :
Sr.No. POINTS FINDINGS
1 Does complainant prove that accused
issued cheques bearing bearing No.225392
and 225393 dated 14/02/2018 for
Rs.1,00,000/- each (total Rs.2,00,000/-)
drawn on State Bank of India, Vihar Lake
branch, in his favour towards discharge in
whole or in part of any debt or other
liability ?
Yes..
2 Does complainant prove that above
referred cheques were dishonored ? Yes..
3 Does complainant prove that demand
notice dated 22/05/2018 issued by the
complainant was served upon accused ? Yes..
4 Does complainant prove that despite of
service of demand notice, accused failed to
make the payment of cheques to the
complainant within 15 days from the
receipt of demand notice ?
Yes..
5 What order ? ...As per final
order
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R E A S O N S
7. Complainant's oral evidence :
Name of Witness Status Exhibit
Sinodh Bachchulal
Chauhan
Complainant 9
8. Complainant's documentary evidence
Documents Exhibit
Disputed Cheques 11 and 12
Cheque return memos 13 and 14
Notice sent to accused 15
Postal acknowledgment Receipt 16
Return envelop 17A
Notice returned with envelop 18A
Evidence close pursis of complainant is at (Exh.13).
9. Accused’s oral evidence :
Name of Witness Status Exhibit
Amit Laleshwar Singh Accused 17B
10. Accused’s documentary evidence:
Documents Exhibit
Receipts of Citrus Check-Inns Ltd. 18 coly.
Evidence close pursis of Accused is at (Exh.20).
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R E A S O N S
AS TO POINT NO. 1 :
11. Appreciation of facts and law is done in accordance with
ingredients of Section-138 of the N.I. Act.
Legally enforceable debt :
12. Accused admitted to his signature on disputed cheques.
Presumption as contemplated under Section-139 of the N.I. Act, has to
be raised in favour of the complainant. This presumption is mandatory
presumption and not general presumption. It does indeed include
existence of legally enforceable debt or liability. The same has been laid
down in the case of
Rangappa Vs. Shri. Mohan [A.I.R. 2010S.C.1898].
13. There is no evidence to show that, complainant has filed
false case to grab money by misusing disputed cheques (Exh.11 and
12). Defence that, disputed cheques (Exh.11 and 12) are misused has
no substance because such misuse cannot go unnoticed for long.
Moreover, accused (D.W.1) admitted during his cross-examination that,
he has no document to show that, he had given two blank cheques to
the complainant. He did not file any complaint about the misuse of
cheques. Even the bank has not initiated any prosecution against the
complainant for misuse of disputed cheques (Exh.11 and 12).
Furthermore, accused has not proved as to why complainant would
target accused only. Personal vendetta cannot be gathered. Unless
complainant had genuine case in his hand, why would he waste his
time, energy, money for 2 years in pursuing this case.
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14. It was suggested to complainant (C.W.1) that, blank
cheques were issued to him. By filling its contents he misused the
cheques, but he firmly denied to it. It has to be inferred that, accused
has not been able to shatter statutory presumptions raised against him.
Complainant (C.W.1) has not given any admission which would rebut
the presumption that is raised in his favour. The only conclusion is that
cheque was issued for discharge of legally enforceable debt by accused.
''Hence, I answer Point No. 1 in the affirmative''.
AS TO POINT NO. 2 :
Dishonour of cheque :
15. Bank memos are at (Exh.13 and 14). It is seen that
disputed cheques (Exh.11 and 12) were dishonoured due to reason
“Payment Stopped by Drawer”. As per Section 146 of N.I.Act, bank
return memos (Exh.13 and 14) denoting that, cheques were
dishonoured, shall be regarded as proof of the fact of dishonour, unless
it is disproved. Accused did not produce any record or material to show
that, cheques were not dishonoured. Therefore, on the basis of bank
return memos (Exh.13 and 14) issued by Union Bank of India,
Hiranandani Branch, the fact that, the disputed cheques were
dishonored is duly proved. ''Hence, I answer Point No. 2 in the
affirmative''.
AS TO POINT NOS. 3 AND 4 :
Notice and cause of action
16. As per the records complainant received intimation about
dishonoured of cheques on 10/05/2018. Complainant’s notice to
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accused is dated 22/05/2018. As per section-138 of the N.I. Act, notice
is sent within limitation. Notice (Exh.15) is seen to be sent on correct
address.
17. Citations filed by the complainant :
i) K. Bhaskaran V/s. Sankaran Vaidyan Ballan [1997(7)S.C.C. 510] wherein
it is held that, if the signature on the cheque is admitted to be that of
accused, the presumption envisaged under Section 118 of N. I. Act, can
be legally inferred that, the cheque was made or drawn for
consideration on the date which the cheque bears. Therefore, in the
present case as accused admitted that, disputed cheque was signed by
him, the presumption under Section 118 can be inferred. Settled legal
position is discussed.
ii) Bir Singh V/s. Mukesh Kumar 2019 [ALL SCR (Cri) 510] wherein it is
held that presumption under Section-139 of the N.I. Act is that holder
of the cheque received the cheque towards the discharge of any debt or
liability. Onus is on the accused to rebut the presumption by proving
that cheque was not issued towards discharge of any debt or liability.
Settled legal position is discussed.
iii) M/s. Sai Auto Agencies V/s. Sheikh Yusuf Sheikh 2010 [ALL MR (Cri.) 204]
wherein it is held that if blank cheque is given towards liability or as
security, when the liability assessed or quantified, if the cheque is filled
up and presented to the bank, the person who had drawn the cheque
cannot avoid the criminal liability arising out of Section-138 of the N.I.
Act. Settled legal position is discussed.
iv) Rekha Mahindra Shah V/s. Gautam Umed Parnar and another [2013 Cri. L.J.
2415] wherein it is held that demand notice with acknowledgment are
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duly proved. Merely because acknowledgment was signed by husband
of accused, it would not mean that demand notice was served. Settled
legal position is discussed.
v) Shri. Deelip Apte V/s. Nilesh P. Salgaonkar & another [2006 ALL MR (Cri.)
1921] wherein it is held that fact that loan advanced was not disclosed
in income tax return, or that no written agreement was effected while
giving loan amount are not very material. Because complainant and
accused were friends of each other. Facts of both the cases are not
same.
vi) K.N. Beena V/s. Muniyappan and another [J.T.2001 (9) SC 228] wherein
it is held that, under Section-118 of the N.I. Act, unless the contrary is
proved, it is to be presumed that, the negotiable instruments (including
cheque) had been made or drawn for consideration. Under Section-
139 of the N.I. Act, Court has to presume, unless the contrary is
proved, that the holder of the cheque received the cheque for
discharge, in whole or in part, of debt or liability. Settled legal position
is discussed.
Cause of action :
18. According to acknowledgment receipt (Exh.16) accused
returned the notice on 24/05/2018 served upon him, complaint is filed
on 19/06/2018. As per Section-138 r/w. 142 of the N.I. Act case is
filed within the period of limitation. Conditions precedent for
application of Section-138 of N.I. are fulfilled. ''Therefore, I answer
Point Nos.3 and 4 in the affirmative''.
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AS TO POINT NO. 5 :
19. In view of above findings, I hold accused guilty for offence
punishable under Section 138 of the N.I. Act. Therefore, accused is
liable to be convicted for the same. But it is necessary to hear the
accused on the point of sentence. So, I stop with my judgment here for
the same.
20. I have heard accused and his advocate on the point of
sentence. The accused and his advocate submitted that, he is man of
responsibilities. Leniency be shown against him. He has no criminal
antecedents.
21. On the other hand Ld. Advocate for complainant submitted
that, maximum sentence be awarded to accused.
22. Accused had an opportunity to pay cheque amount to the
complainant when he had received notice. Thereafter, he had one
more occasion to pay the amount when he received Court summons,
but he avoided to pay the cheque amount on both these occasions. He
himself invited such an unpleasant situation. Moreover, it is an
economic offence and the circumstances under which this offence is
committed, I am not inclined to extend benefit under the provisions of
Probation of Offender's Act, to accused.
23. Hon'ble Supreme Court has held in the case of
Vinod
Shivappa Vs. Nanda Belliappa, [A.I.R. 2006 SC 2179], that, Section 138
of N. I. Act, was enacted to punish those unscrupulous persons who
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purported to discharge their liability by issuing cheques without really
intending to do so, which was demonstrated by the fact that, there was
no sufficient balance in the account to discharge the liability. While
sentencing the accused the Court has to see that, not only the accused
is punished. But, also the complainant is compensated. It is worthy to
mention here that, because of the act of accused the complainant was
unnecessarily forced to approach the court and invest his valuable time
and energy from last many years. As per Section 357 of Criminal
Procedure Code court can order to pay compensation to the victim
(Complainant).
24. In the background of all these aspects taking into
consideration nature of offence, disputed cheque amount and its date, I
am of the opinion that, sentencing accused with rigorous imprisonment
of three months would be just and proper.
25. Accused unnecessarily compelled the complainant to knock
the doors of Court. Therefore, he needs to be compensated by accused.
Accused had not shown any special circumstances which would require
infliction of less compensation than double of the cheques amount. The
cheques in question are for Rs.1,00,000/- each (Total to Rs.2,00,000/-).
Considering these peculiar circumstances, the nature of transaction and
paying capacity of accused awarding compensation to the complainant
of double the disputed cheques amount will be just and proper. Thus,
accused is liable to pay Rs.4,00,000/- (Rs.2,00,000/- x 2 =
Rs.4,00,000/-) to the complainant. With this, I pass the following
order :
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[Judg.]
O R D E R
(1) Accused is convicted for the offence punishable
under Section 138 of Negotiable Instruments Act
vide Section 255(2) of Criminal Procedure Code
and sentenced to suffer rigorous imprisonment for
three months.
(2) Accused is also directed to pay compensation vide
Section 357(3) of the Code of Criminal Procedure
of Rs.4,00,000/- (Rupees Four Lakhs only) from the
date of this order within one month in default of
payment of amount of the compensation the
accused shall suffer further simple imprisonment for
one month each.
(3) Accused to surrender his bail bonds.
(4) The substantive and defaultive sentence shall run
consecutively.
(5) Accused shall be entitled to period of set off, if any.
(6) The amount of compensation, if recovered, be paid
to the complainant, after appeal period is over,
subject to the provisions of Section 357 of Criminal
Procedure Code.
(7) Copy of this final order be given to accused free of
cost as per Section 363(1) of Cr.P.C.
(S.A.R. Sayed)
Metropolitan Magistrate,
Date: 05/03/2021 63rd Court, Andheri, Mumbai.
Dictated on : 05/03/2021
Typed on : 05/03/2021
Signed on : 05/03/2021
pkk
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