Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 2627/SS/2018
Filed on : 29/06/2018
Registered on : 29/06/2018
Decided on : 08/05/2023
Duration : 04Y. 10M. 09D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 2627/SS/2018
CNR: MHMM190067542018
Exh. No.
Mrs. Roshan Abdul Razzak Mansoori.
Room No. 9, Juhur Ahmed Chawl,
Oshiwara Behram Baug,
New Link Road, Jogeshwari (W),
Mumbai – 400 102. …Complainant
Versus
Mr. Mohammed Shakeel Tanwar.
901/AWing, G. N. Tower, S. V. Road,
Near Andheri Subway, Andheri (E),
Mumbai – 400 0058. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Rajesh Gaikwad for the complainant
Advocate Divakar Trivedi for accused.
JUDGMENT	JUDGMENT
(Delivered on 08/05/2023)
Accused is mired in the trial, for having committed an
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offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
(Hereinafter it is referred as 'N.I.Act' in short.)
Bonsai facts of the complaint are as under :
2] It is the case of complainant that, she knows the accused since
long. Accused propagated to her that he is very rich person having
sound financial background. He also informed to her that he is owner
of Chawl but presently due to the demonetization of currency, he is
facing some difficulties and he is in urgent need of cash. Therefore,
relying on words of accused, she gave an amount of Rs. 50,00,000/ to
the accused in cash by way of friendly loan. Accordingly, for repayment
of said amount, accused issued two cheques, each for an amount of Rs.
25,00,000/ bearing cheque nos. 1000395 and 1000396 dated
31/03/2018 drawn from his account maintained with Jankalyan
Sahakari Bank Ltd. Andheri (W), Mumbai.
3] As per instruction of accused, complainant presented said
cheques for clearance with her banker namely HDFC Bank, Mumbai for
encashment, however vide bank memo dated 25/04/2018 both cheques
were returned unpaid for reason “Funds Insufficient” in the account of
drawer.
4] It is further case of complainant that, after dishonoure of cheque,
complainant issued statutory demand notice to accused on 09/05/2018
through RPAD, calling upon her to pay the cheque amount, within
stipulated time. Notice was duly served upon accused on 25/05/2018
but accused did not make payment of cheque amount. As amount
claimed in notice, was not paid by the accused, complainant left with no
other option than to knock the door of the court seeking justice and ipso
Jure case came before this court, which was filed on 29/06/2018.
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5] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which accused
pleaded not guilty and opt for trial.
6] In order to prove guilt of accused, complainant examined herself
(C.W. 1) by filing her affidavit in lieu of examinationinchief at Exh.
22, vide section 145 of the Negotiable Instrument Act. Besides oral
evidence, complainant has relied upon following documentary evidence
that includes:
Description of documents Exh. No.
Original cheque Exh. 24 and 25
Cheque returned memos Exh. 26 and 27
Office copy of notice Exh. 28
Postal receipt Exh. 29
Acknowledgement card Exh. 30
Reply notice Exh. 31
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 41, wherein accused
has taken a defence of falsely implication. In support of his defence,
accused examined himself at Exh. 43 and Mr. Jayprakash Nair (D.W. 2)
at Exh. 47.
8] Complainant has filed her written notes of argument at Exh. 49
while accused has filed her written notes of argument at Exh. 50.
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9] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of both parties. 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
cheques were issued by the accused, in
favour of complainant for discharging legal
enforceable liability?
…. In the
Negative
2. Does complainant prove that cheques 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 is
acquitted.
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REASONS
Admitted/undisputed fact
10] 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 his signature.
AS TO POINT NO. 1
11] The accused is roped in the offence punishable u/s. 138 of
the N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
 The payee or the holder in due course of the cheque makes a
demand for the payment of said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of
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.
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
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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.
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
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discharge in whole or in part of any debt or other liability. The word
“shall presume” as per Section 4 of Indian Evidence Act means
whenever it is directed by this act, that the court shall presume a fact, it
shall regard such fact as a proved unless and until it is disproved. Thus,
the burden of proof as to cheque has not been issued as a legal debt or
liability is always on accused and it is for him to rebut said
presumption. A useful guidance on the said point can be taken from the
verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
14] In order to prove her case, complainant examined herself
(C.W.1) by filing her affidavit of examinationinchief at Exh. 22
wherein she has reiterated her case from the complaint. Her evidence
shows that, She had advanced friendly loan of Rs. 50,00,000/ to the
accused in cash and in order to repay said amount, disputed two
cheques were issued by the accused in her favour. Besides her oral
evidence complainant has relied upon memorandum of understanding
executed between her and accused. Said MOU is produced on record at
Exh. 38. Accused has not denied execution of MOU but according to
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him, it was executed under pressure and he had signed it without going
through contents therein. In MOU it is specifically mentioned that the
first party of MOU i.e. accused herein has obtained an amount of Rs.
7,00,000/ through cheque dated 15/04/2013 and remaining amount
of Rs. 18,00,000/ in cash i.e. total amount of Rs. 25,00,000/ against
the one room under PAP Scheme. In the same manner, one more MOU
was executed between the complainant and brother of accused namely
Mohd. Ayyaz. Said MOU has filed on record at Exh. 39. In the said
MOU also, it is mentioned that accused has received an amount of Rs.
7,00,000/ through cheque and Rs. 18,00,000/ through cash i.e. Rs.
25,00,000/ against one room and as such accused has received an
amount of Rs. 50,00,000/ with promise to give two room to the
complainant under PAP Scheme. Thus, in first as well as second MOU,
it is stated that complainant has paid total amount of Rs. 50,00,000/ to
the accused against two room under PAP Scheme.
15] Ld. Advocate for accused conducted crossexamination of
complainant at considerable length. Besides that, accused got examined
himself at Exh. 43 and he also examined Mr. Jayaprakash Nair at Exh.
47. It is the defence of accused that, he knows that complainant since
last 10 years. According to him, prior to 10 years, accused had been to
him along with contractor Subhedar in relation to some problem and
thereafter she used to meet him frequently. According to him, in the
year 2013, he had approached to Mr. Nivatkar and Mr. Chavhan for
purchasing two rooms for his sister under project affected person
scheme (PAP Scheme). Accordingly, sister of accused paid an amount
of Rs. 50,00,000/ to Mr. Nivatkar and Chavhan for purchasing two
rooms. At that time, complainant requested to accused to give two
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rooms to her from Mr. Nivatkar and Chavhan under PAP Scheme. His
evidence further shows that accordingly complainant also paid an
amount of Rs. 50,00,000/ against two rooms to Mr. Nivatkar and
Chavhan and out of which an amount of Rs. 40,00,000/ was given by
her to Mr. Nivatkar and Chavhan in his presence. His evidence further
shows that till date, Mr. Nivatkar and Chavhan has not given any rooms
either to his sister or to the accused. According to him, Mr. Nivatkar
has repaid an amount of Rs. 5,00,000/ to the complainant through
RTGS and as per his knowledge still an amount of Rs. 30,00,000/ to
32,00,000/ is payable to the complainant by Mr. Nivatkar and
Chavhan. His evidence further shows that, he never obtained friendly
loan of Rs. 50,00,000/ from the complainant.
16] So far as MOU executed between complainant and accused, it is
the contention of accused in his evidence that complainant had been to
his house and she resided there for the period of 15 days. She was not
ready to leave his house, unless accused agrees with her demand.
According to him, due to residence of complainant at his house,
disputed arose between him and his wife and matter went to the extent
of divorce. Therefore, he had no option but to sign on memorandum of
understanding which was got prepared by the complainant. In short, he
tried to say that accused created pressure on him to sign the MOU and
therefore he signed it without going through contents mentioned
therein.
17] So far as issuance of cheque is concerned, it has come in the
evidence of accused that, when complainant realized that there is some
mistake in MOU, she came to his office along with one Gunda person
namely Uttam Jagtap @ Daddy and forcefully took two cheques from
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him for an amount of Rs. 25,00,000/ each. He further stated that
complainant assured to him that she would not deposit these cheques
for clearance and same would keep with her as a security, till she
receives the payment from Kamlakar Nivatkar and Rajesh Chavhan. He
further stated that in last week only he came to know that Mr. Chavhan
and Nivatkar have repaid near about 35,00,000/ to the complainant.
His evidence further shows that, he was never in need of money during
demonetization period and hence did not approach to the complainant
for loan. According to him, complainant did not give an amount of Rs.
50,00,000/ or any amount by way of loan.
18] It has also come in the evidence of accused that, complainant has
got executed similar MOU from his brother Mohd. Ayyaz Tanwar. His
evidence further shows that he was the owner of room no. D5 while his
brother was the owner of Room No. D9. His evidence further shows
that complainant took possession of room no. D5 and D9 without his
knowledge.
19] As discussed earlier, Ld. Advocate for accused has conducted
crossexamination of complainant at length and put his defence. In
crossexamination also same suggestions were put to the complainant as
he stated in his evidence. However, complainant has flatly denied
having taken place any transaction between her on one side with Mr.
Nivatkar and Chavhan on the other side. She has admitted suggestion
given on the part of accused that in the year 201213, she had given an
amount of Rs. 25,00,000/ to the accused and his brother each i.e. total
amount of Rs. 50,00,000/. Out of this 50,00,000/, only 7,00,000/
was through bank transfer and remaining amount was in cash. She
further stated that she did not receive back any amount which was
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given by her to the accused through bank transfer. In cross
examination further she admitted that out of Rs. 7,00,000/, accused
has repaid an amount of Rs. 6,00,000/ through bank transfer. After
giving said answer, she further voluntarily stated that again accused
had received back said amount from her in cash. She further stated that
she doesn't remember that, said amount of Rs. 6,00,000/ transferred
by the accused in her account was not withdrawn by her from the
account.
20] Thus, it has come on record that, accused has repaid some
amount to the complainant. Ld. Advocate for complainant has
conducted crossexamination of accused Mohd. Tanwar (D.W.1) at Exh.
43. In said crossexamination it was suggested that, complainant had
given an amount of Rs. 25,00,000/ each to the accused and his brother
for obtaining rooms under PAP Scheme. However, these suggestions are
denied by the accused. According to complainant, in addition to above
mentioned amount of Rs. 50,00,000/, again in the year 2016 she had
given an amount of Rs. 50,00,000/ to the accused in cash. Admittedly,
there is no documentary evidence to show that, complainant had
advanced an amount of Rs. 50,00,000/ to the accused in cash. Thus,
complainant has tried to say that, there were two different transactions
i.e. earlier transaction for an amount of Rs. 50,00,000/ was in respect
of rooms under PAP schemes, while second transaction was friendly
loan of Rs. 50,00,000/ given to the accused. According to her, in order
to repay amount of friendly loan, disputed cheques were issued by the
accused in her favour. She has denied case of the accused that, she had
given an amount of Rs. 50,00,000/ to Mr. Nivatkar and Chavhan for
obtaining room under PAP Scheme. According to complainant, accused
and his brother failed to give possession of room under PAP scheme and
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hence in lieu of rooms under PAP Scheme, accused and his brother gave
possession of room no. D5 and D9 to her.
21] Accused has denied entire case put by the complainant. For the
sake of argument, if I accept case of complainant that, earlier
transaction was totally different and it was over by giving possession of
room no. D5 and D9, then again question arise whether there is any
evidence to show payment of Rs. 50,00,000/ by complainant to the
accused. Question also arise for what transaction, an amount of Rs.
6,00,000/ was received by the complainant through account transfer
from the accused. Except oral evidence of complainant, there is no
evidence on record to show that complainant had advanced loan of Rs.
50,00,000/ to the accused. So far as MOU filed on record at Exh. 38
and 39 is concerned, as per case of accused, she has received room no.
D5 and D9 against the said MOU in lieu of rooms under PAP scheme.
Therefore, MOU at Exh. 38 and Exh. 39 need not be considered.
22] Case of the accused that, complainant had given an amount of Rs.
50,00,000/ to Mr. Nivatkar and Chavhan is also not supported by any
documentary evidence. Accused did not examine Mr. Chavhan and
Nivatkar to show that there was any transaction between them and
complainant in relation to room under PAP scheme. Therefore, by
keeping aside earlier transaction, it is to be find out whether there is
any evidence in respect of present friendly loan transaction of Rs.
50,00,000/. When complainant had given an amount of Rs.
50,00,000/ to the accused for obtaining rooms under PAP scheme and
accused were unable to give rooms, in such situation again complainant
gave friendly loan of Rs. 50,00,000/ to the accused that too, without
executing any document is appears to be highly improbable and
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unbelievable. Certainly an amount of Rs. 50,00,000/ is huge amount
for any person from middle class family. Complainant did not produce
any evidence as to how said amount was arranged by her. Besides that,
admission given by complainant in her crossexamination shows that,
complainant doesn't pay incometax. She further admitted that, in the
year 2007, she had purchased flat and for purchase of said flat, she had
obtained loan of Rs. 60,00,000/ approximately. She further admitted
that, she is a housewife and she has no any independent income but she
depends on income of her husband. She doesn't know what was the
income of her husband. According to her, in order to arrange said
amount, they have sold out, one plot, one room, her share from flat at
Jogeshwari and gold worth Rs. 18,00,000/. However, no documents
are produced on record by the complainant to show sale of house, plot
and gold. In short, there is absolutely no evidence on record except oral
evidence of complainant that, she had advanced loan of Rs. 50,00,000/
to the accused in cash. Admittedly, accused had sent reply to demand
notice denying his liability and stating therein that, disputed cheque
were issued in relation to earlier transaction by way of security and
same were obtained by the complainant with the help of Gunda person.
There appears to be earlier dispute between complainant and accused
in relation to giving rooms to her under PAP Scheme. In such
circumstances, defence taken by the accused that, these cheques were
issued in relation to earlier transaction is appears to be probable.
23] Once, accused has come before court denying acceptance of
friendly loan of Rs. 50,00,000/ and he putforth probable defence
giving explanation for issuance of cheque, in that case burden was
shifted on the complainant and it was for the complainant to give strict
proof in respect of hand loan of Rs. 50,00,000/ given by her to the
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accused. It is needless to say that, standard of proof required for the
accused for rebuttal presumption u/s. 139 of N.I. act is preponderance
of probabilities. Certainly, defence put up by the accused is appears to
be probable and thereafter it was for the complainant to prove that,
loan was advanced by her to the accused and for repayment of that
amount, disputed cheque was issued by the accused. As discussed
earlier, an amount of Rs. 50,00,000/ is huge amount for complainant
and therefore her contention that said amount was given by her by way
of friendly loan to the accused that too without executing any document
is not believable. Accused has successfully rebutted presumption u/s.
139 of N. I. Act. In result, point no. 1 is answered in the Negative.
AS TO POINT NO. 2 TO 5
24] Complainant has produced on record cheque return memos
at Exh. 26 and 27 which shows that, cheques were dishonoured vide
memo dated 25/04/2018. These memos bears seal of the bank and
signature of bank officer. Therefore, as per presumption u/s. 146 of
N.I. Act, it is to be presumed that, cheques were dishonoured for the
reason “Funds Insufficient” in the account of drawer. Admittedly
complainant had sent notice on 09/05/2018 demanding cheque amount
from the accused. Said notice was duly served upon the accused.
Accused has replied to the demand notice but failed to pay the cheque
amount. It is a matter of record that, said complaint is filed by the
complainant on 29/06/2018 i.e within limitation. In result point no. 2
to 5 are answered in the affirmative.
AS TO POINT NO.6
25] Taking into consideration answer of points Nos. 1, it becomes
clear that, complainant has failed to prove that disputed cheque was
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issued for discharging legal enforceable liability consequently failed to
prove offence u/s. 138 of N.I. Act against the accused. Therefore, on
that count accused is entitled for acquittal. In result I proceed to pass
following order :
ORDER
1] The accused Mr. Mohammed Shakeel Tanwar is hereby
acquitted vide Section 255(1) of Criminal Procedure code for an
offence punishable under Section 138 of the Negotiable
Instruments Act.
2] Bail bond of accused stands canceled.
3] Accused 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 of the Code of Criminal Procedure. Said bail bonds
shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Mumbai (K. G. Sawant)
Dt. 08/05/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 08.05.2023
Typed On : 08.05.2023
Signed On : 08.05.2023
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