Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1/13 C. C. No.2507/SS/2018
Filed on : 19/06/2018
Registered on : 19/06/2018
Decided on : 07/02/2023
Duration : 04Y. 07M. 18D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 2507/SS/2018
CNR: MHMM190064052018
Exh. No.
Kaybee Realty Solutions Pvt. Ltd.
Having its office at:
G1, Ketan Villa,Plot No. 25,
Hatkesh Society, EW, Road, No. 2,
JVPD, Vile Parle (W), Mumbai.
Represented by its constituted attorney:
Mr. Ketan Barai.
Aged : 50 years. ...Complainant
V/s.
1. M/s. Ahuja Properties & Associates,
A Partnership concern, carrying on its
business at A201, Rajpipla, Main Avenue,
Opp. Standard Chartered Bank,
Santacruz (W), Mumbai – 400 054.
2. Mr. Jagdish Bhagwandas Ahuja,
Partner & Authorized Signatory of accused no. 1
Residing at :
111/ Soona Villa, Perry Cross Road,
Bandra (W), Mumbai 400 050.
3. Mr. Gautam Jagdish Ahuja.
Partner & Authorized Signatory of accused no. 1
Residing at :
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112/ Soona Villa, Perry Cross Road,
Bandra (W), Mumbai 400 050. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Smt. Maya Jadhav for the complainant.
Advocate Shri. M. H. Kazi for the accused.
JUDGMENT	JUDGMENT
(Delivered on 07/02/2023)
Accused are mired in the trial, for having committed an
offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
(Hereinafter it is referred as 'N.I.Act' in short.)
Case of the complainant in nutshell is as under :
2] It is case of complainant that, complainant is a pvt. Ltd.
Company and filed this complaint through its director and authorized
representative namely Ketan Barai. Accused no. 1 is a partnership firm
while accused no 2 and 3 are its partner and authorized signatories.
Accused no. 2 and 3 are responsible for daytoday affairs and
management of accused no. 1 firm. It is further case of complainant
that accused no. 2 and 3 approached to complainant and requested to
advance some amount by way of loan for their business. Relying on
words of accused, complainant advanced an amount of Rs. 25,00,000/
to the accused through cheque dated 01/04/2013. Accused also issued
bill of exchange in favour of complainant. In order to repay said
amount, accused issued cheque no. 376940 dated 31/07/2017 for an
amount of Rs. 27,51,156/ drawn from the account of accused no.1 and
signed by accused no. 2 with consent of accused no.3. Complainant
presented said cheque for clearance, however it was returned unpaid.
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3] It is further contention of complainant that, thereafter once
again accused issued two cheques bearing no. 497856 dated
31/01/2018 for an amount of Rs. 23,45,744/ and cheque no. 497854
dated 31/01/2018 for an amount of Rs. 5,31,900/ drawn from account
of accused no.1. Both cheques were signed by accused no. 2 with
consent of accused no.3.
4] It is further case of complainant that, he presented said cheques
for clearance with his banker namely Shamrao Vitthal Co.Op. Bank, Ltd,
Vileparle (W), however, vide memo dated 30/04/2018, both cheques
returned unpaid for reason “Payment stopped by drawer” .
5] Thereafter, complainant issued statutory demand notice,
dt. 18/05/2018, calling upon accused to pay the cheque amount within
statutory period given by law. Notice was duly served upon accused on
19/05/2018. Inspite of service of notice accused failed and neglected to
make the payment of cheque amount to the complainant within
statutory period. Hence, complainant filed this complaint against the
accused on 19/06/2018.
6] 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
offence, this case is a tried as a summons trial case.
7] In order to prove guilt of accused, complainant examined its
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representative namely Ketan Barai by filing his affidavit in lieu of
examinationinchief at Exh. 15 as per section 145 of the Negotiable
Instrument Act. Besides oral evidence, complainant has relied upon
following documentary evidence that includes:
Sr. No. Description of documents Exh. No.
1. Certified copy of resolution dated
03/05/2018
Exh. 19
2. Verified copy of minute book Exh. 20
3. Partnership deed of accused no.1 Exh. 21
4. Verified copy of bill of exchange Exh. 22
5. Letter dated 26/09/2016 Exh. 23
6. Letter dated 01/08/2017 Exh. 24
7. Original cheques Exh. 25 and 26
8. Cheque returned memos Exh. 27 and 28
9. Office copy of notice Exh. 29
10. Postal receipts Exh. 30 to 34
11. Acknowledgement Exh. 35 to 39
8] After closer of complainant's evidence, case was fixed for
recording statement of accused U/s. 313 of Cr.P.C., however accused
did not appear and hence by passing order below Exh. 01 statement of
accused u/s. 313 of Cr.P.C. was dispensed with.
9] Heard Ld. Advocate for complainant. Perused written notes of
argument filed on behalf of complainant. Inspite of sufficient
opportunity given, Ld. Advocate for accused did not argue and hence
matter proceeded without hearing argument on the part of accused.
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10] In view of accusation and considering facts of this case, 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 “Payment
stopped by drawer”
…. In the
affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
…. In the
affirmative
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
.. Accused are
convicted
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REASONS
AS TO POINT NO. 1
11] 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
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.
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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;
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
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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
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
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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 their case, complainant examined its
representative Mr. Ketan Barai by filing his affidavit of evidence at
Exh.15, wherein he has reiterated his case from the complaint. His
evidence shows that, complainant company had advance loan of Rs.
25,00,000/ to the accused, through cheque and for repayment of said
amount along with interest, disputed cheques were issued by the
accused. Inspite of sufficient opportunity given, Ld. Advocate for
accused did not conduct crossexamination of complainant. It is
necessary to note here that, accused had obtained such type of
deposits/loans from so many peoples. Many cases are pending against
the accused in this court. Accused did not challenge evidence of
complainant and not denied his case.
15] From perusal of evidence on record, it appears that accused has
failed to rebut the presumption u/s. 139 of N.I. Act. Oral and
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documentary evidence produced on record by the complainant, clearly
shows that complainant had advanced loan of Rs. 25,00,000/ to the
accused and in order to repay said amount, disputed cheques were
issued by the accused i.e. for discharging legally enforceable liability. 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 “Payment stopped by drawer”, complainant has relied upon oral
evidence of its representative, in addition to documentary evidence i.e.
cheque return memo filed on record. Said memo clearly shows that
both cheques were returned unpaid for a reason “Payment stopped by
drawer”. As per section 146 of N.I. Act, court shall in respect of every
proceeding under this chapter, on production of bank slip or memo
having thereon official mark denoting that cheque has been dishonored,
presume the fact of dishonor of such cheque, unless and until such fact
is disproved. In the case at hand memo bears seal of the bank and
signature of bank officer. Accused did not bring any evidence to show
that disputed cheques were not dishonored for a reason mentioned in
memo. Therefore, it remains proved that cheques were dishonored for
a reason “Payment stopped by drawer”.
17] Thus, from perusal of oral and documentary evidence filed on
record, it becomes clear that demand notice was sent by the
complainant within limitation. Complainant has filed on record postal
receipt and postal acknowledgment card, which shows that notice was
duly served upon the accused. Admittedly, inspite of service of notice,
accused has failed to pay cheque amount to the complainant. All these
things shows that notice was sent within limitation and complaint is
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also filed within limitation. In result point nos. 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, I do not find any special reasons
or justifications to extend the benefit of probation to accused 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 : 07/02/2023 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 waived
off his chance to submit on the point of sentence. The offence
punishable U/s. 138 of N.I. Act is required to be tried summarily. For
such trials procedure contemplated in Code of Criminal Procedure for
the trial of summons case as a specified in Chapter XX of code is to be
adopted. This case is also tried as per the procedure prescribed for the
trial of summons case vide Chapter XX of Cr.P.C.
20] I have carefully gone through the provisions of Chapter XX
and Section 255 of the Code of Criminal Procedure. Unlike warrant
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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, this court proceeds further in the absence of accused. On
point of sentence Ld. Advocate for complainant has submitted that
maximum sentence of imprisonment and fine amount be imposed on
accused and also prayed to grant maximum compensation in favour of
complainant as per law.
21] Admittedly, In this matter, accused has accepted deposits from
complainant and failed to repay it. Accused has accepted such type of
deposits from so many peoples. Many cases are pending against
accused in this court. Complainant has given amount to the accused
through cheques. Considering nature of offence, conduct of the
accused, the period from which matter is pending in my opinion
following order will meet the ends of justice:
ORDER
i. The accused No. 1 M/s. Ahuja Properties & Associates, Accused
No. 2 Mr. Jagdish Bhagwandas Ahuja and Accused no. 3 Mr. Gautam
Jagdish Ahuja partners of accused no. 1 M/s. Ahuja Properties &
Associates 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 Six months each and accused no. 1 to 3 shall pay jointly
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and 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 one month 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 bonds.
v. No question of setoff under section 428 of the Code of Criminal
Procedure, 1973, as the accused has not spent any period in the custody
during the trial.
vi. Today i.e. on the date of judgment accused remained absent,
hence issue standing Nonbailable warrant against the accused for their
arrest through concerned police station for execution of sentence in
view of Section 418 (2) of Cr.P.C.
vii. The copy of this Judgment shall be send to the convicted accused,
free of cost, immediately after it is prepared, in view of section 363(1)
of the Code of Criminal Procedure, 1973.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt.07/02/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 07/02/2023
Typed On : 07/02/2023
Signed On : 07/02/2023
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