Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
Received On : 12/07/2018
Registered On : 12/07/2018
Decided On : 02/07/2026
Duration :Y-07, M-11, D-20
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 2782/SS/2018 Exh. 72
M/s. Usman Umar and Sons,
a partnership firm governed under the
provisions of Indian Partnership Act, 1932
having its office address at 20 S. V. Road,
Opp. Andheri Sub-way, Near DCB Bank,
Andheri (West), Mumbai – 400 058.
Through its partner
Mr. Mohamed Rafique Haji Usman Momin
Aged : 62 years, Occu : Businessman,
residing at D-101, Neamat CHS Ltd.,
134 S. V. Road, Near Crystal Apartment,
Jogeshwari (West), Mumbai- 400 102 -- Complainant
Versus
1. KRP Infrastructures & Builders Pvt. Ltd.,
a Company incorporated under the Provisions of
the Companies Act, 1956
2. Mr. Rahul Pathak,
an Adult, Indian inhabitant,
-- 1 of 23 --
2 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
both having their office address at
‘C’ wing, 904, Building No. 2, Gaurav Paradise,
Mira Road East, Thane – 401 107
and now having their new office address at
office no. 4, Ashley Towers, Besides HDFC
Bank, Kanakia Road, Cinemax, Mira Road (E),
Thane – 401 107. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
----------------------------------------------------------------------------------------
Appearance:- Advocate for the complainant – Mohammed Bilal
Qureshi/ Zaid S. Ansari & Associates.
Advocate for the accused – Mr. Jagdish Shukla
------------------------------------------------------------------------------------------
JUDGMENT
(Delivered on 02nd of July 2026)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“the Act” for short) for dishonor of two cheques for total amount of Rs.
8,84,185/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that it is a partnership
firm running in the name ‘M/s. Usman Umar & Sons’ and carrying on
business of trading in building material etc. Accused No. 1 is a private
limited company and accused No. 2 is a managing director and
responsible for day-to-day affairs of accused No. 1. As per the demand
of accused, the complainant supplied the required building materials to
the accused. The building materials was delivered to the accused on
credit basis and accused assured to pay the amount within 45 days from
-- 2 of 23 --
3 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
the date of delivery. The complainant has raised invoices towards the
supply of building material. As per the submission of complainant
initially till 09/11/2017, the accused was regular in making payment.
In the last week of November 2017, accused had placed orders to the
complainant and the complainant has supplied various quantity of
OPC/PPC cement to the accused. The complainant has issued invoices
of Rs. 8,90,022.40/- against the accused.
03. It is averred by the complainant that for the payment of
said liability against the invoices, the accused has issued two cheques
bearing No. 304427 and 304429 dated 25/11/2017 and 30/11/2017
respectively drawn on Axis Bank, Bandra-Kurla Complex. Further, the
accused has issued another cheque No. 309006 dated 25/12/2017 of
Axis Bank, Bandra-Complex Branch to the complainant. The
complainant had deposited these cheques for encashment with his
banker the DCB Bank, Andheri (W) on 29/01/2011 and cheque No.
304427 and 304429 were dishonoured with reason “Payment stopped
by drawer” and cheque No. 309006 was dishonoured with reason
“Funds Insufficient”. The complainant informed this fact to the accused
and the accused assured him that he would pay the amount within 45
days.
04. It is further averred by the complainant that in order to full
and final payment against the clearance of the said invoices, accused
issued two cheques in favour of complainant bearing cheque No.
000497 dated 15/03/2018 for an amount of Rs. 5,00,000/- and cheque
No. 000498 dated 15/03/2018 for an amount of Rs. 3,84,185/-, drawn
on HDFC Bank, Sector C, Sahara Road, Jankipuram, Lucknow – 22602,
Uttar Pradesh Branch. After discussion and assurance, both the cheques
-- 3 of 23 --
4 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
were presented for encashment by the complainant with his banker
namely DCB Bank, Andheri West Branch on 03/05/2018. The same
were returned unpaid from drawee bank with endorsement of ‘Funds
Insufficient’. Accordingly, the DCB bank issued memos dated
04/05/2018. Thereafter, he contacted the accused and requested to pay
cheque amount but the accused intentionally not paid said amount.
Thereafter, he issued demand notice dated 22/05/2018 to accused. The
notice was duly served on the accused but accused failed to pay cheque
amount within stipulated period. Hence, the complainant constrained
to file present complaint.
05. After recording statement of the complainant and perusing
all documents produced on record, process came to be issued against
the accused for the above offence. In response to summons, the accused
appeared. Particulars of offence recorded below Exh. 16 which was
read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
06. The accused did not conduct the cross-examination of
complainant and he chosen to remain absent. Non-bailable warrants
were issued against the accused. The complainant closed his evidence
and matter was posted for statement of accused U/s. 313 of Code of
Criminal Procedure. (Hereinafter referred as 'the Code' for short). The
accused was aware about the stage of matter. But in-spite of that, he
could not secure his presence for recording his statement. Admittedly,
the scope of Section 313 of the Code, is very wide. It is not a mere
empty formality. The object of recording of Section 313 of the Code, is
to put all incriminating evidence to the accused so as to provide him an
-- 4 of 23 --
5 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
opportunity to explain such incriminating circumstances appearing
against his in the evidence of prosecution/complainant. However, in-
spite of giving ample opportunity, the accused himself has not availed
his right to explain the incriminating circumstances by remaining
present. As per direction of Hon'ble Apex Court given in case of
Indian
Bank Association and others V/s. Union of India and others (Writ
Petition (Civil) No. 18/2013 Decided on 21/04/2014), the matter is
required to be kept for defence evidence after plea of accused and the
Court must ensure that examination-in-chief, cross-examination and re-
examination of the complainant must be conducted within three months
of assigning the case. In such circumstance, if we keep this matter
pending without progress and more particularly, when such
circumstances arose due to intentional act of accused, it will be against
the right of speedy trial of complainant. Ultimately it will defeat the
object of aforesaid directions of Hon'ble Apex Court regarding speedy
disposal of matter, which is filed for an offence punishable under
Section 138 of the Act. Further as per the decision of the Hon'ble
Bombay High Court in the case of Prakash Chimanlal Sheth V/s. T.
Ramalingam Nadar @ Ramalingam [decided in Criminal Application
No.490 of 2020 dated 14/09/2022] wherein in Para-35 the Hon'ble
High Court has observed as under :
35. Considering the fact that the proceedings under Section 138
of N.I. Act are required to be concluded expeditiously in the
light of guidelines issued by the Courts from time to time for
speedy disposal of the cases, the scope of Sections 141, 142, 143
and 145 of the N.I. Act, it was not necessary for the trial Court
to wait for Accused to make his appearance. The facts of the
present case denote that the Accused was exempted from
appearing and thereafter they continued to disappear from
appearing before the Court. Warrants were issued. The warrants
could not be executed. The Accused even failed to appear before
this Court. In this circumstance, the Court is empowered to
-- 5 of 23 --
6 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
proceed with the case without recording the statement of the
Accused under Section 313 of Cr. P.C. The decision relied upon
by learned APP
Reena Hazarika V/s. State of Assam (supra)
relates to scope of Section 313 of the Code. It is observed that
the Section 313 of the Code confers valuable right upon accused
to establish his innocence. The mere use of word 'may' cannot be
held to confer a discretionary power on the Court to consider or
not to consider such defence, since it constitutes a valuable right
of an accused for access to justice. However, in the present case,
accused have not bothered to remain present before the Court.
The complainant is victim. He is running from pillar to post for
prosecuting the accused. This is a fit case to exercise discretion
and proceed with case by dispensing with statement under
Section 313 of the Code. The accused has no regard for
directions of Court. The trial Court had already passed order of
no cross. Hence, the impugned order of trial Court is required to
be set aside with direction to dispense with statement of accused
under Section 313 of the Code and proceed with the case.
Further, I have perused the decision of Hon’ble Bombay High Court in
the case of Navneet Singh Gogia and 2. Simran Kaur Gogia V/s. 1. The
State of Maharashtra and 2. Sushma B. Chandak, Criminal Revision
Application No. 70 OF 2023 with Interim Application No. 1696 OF
2023, decided on 21/01/2025. It has held that,
“47. After considering the above observation in all the judgments, I
am inclined to take a view, in a case before this Court when it is
found out that the accused is not attending the trial, nor sought for
dispensing the personal attendance and not represented by the
advocate, the trial Magistrate is justified in proceeding in absence of
the accused and without recording 313 statement also. However,
when such power can be exercised is a question of fact. Trial Court
can consider :- a) for how many occasions accused has remained
absent b) steps taken by the complainant to secure presence of the
accused. c) reason why presence could not be secured. d) whether
all modes permissible as per law were exhausted. After ascertaining
all factors, then only such power can be exercised. Above are few of
the factors.”
In the matter in hand, the Non-bailable warrants were
-- 6 of 23 --
7 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
issued against the accused. Complainant has taken every efforts to
secure the presence of accused and thereafter the statement of accused
U/s. 313 of Code of Criminal Procedure came to be dispensed with.
07. Heard Ld. Advocate Mr. Zaid Ansari for the complainant
and also perused and considered the written notes of argument filed by
complainant at Exh. 71. In-spite of giving ample opportunity, none
appeared for accused to argue this matter. Hence, I proceed to decide
this matter on merit without argument of accused.
08. From perusal of record and arguments of complainant,
following points arise for my determination. I have recorded my finding
and reasons thereon as under:
Sr. No. Points Findings.
1. Does the complainant prove that cheque No.
000497 (Exh. 42) and cheque No. 000498
(Exh. 43) were drawn by accused for legally
recoverable debt or other liability?
Yes.
2.
Does the complainant prove that the said
cheque returned unpaid for the reason “Funds
Insufficient”?
Yes.
3.
Does the complainant prove that he had issued
demand notice to the accused within
limitation demanding cheque amount?
Yes.
4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under section 138 of the
Negotiable Instrument Act ?
Yes.
6. What order? The accused
is convicted.
-- 7 of 23 --
8 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
REASONS
09. In order to prove the case, the partner of complainant firm
namely Mr. Mohamed Rafique Haji Usman Momin has filed his evidence
affidavit as a (C.W.1) at Exh. 21. Complainant also examined one bank
witness namely Shivakant Tiwari as a (C.W.2) at Exh. 64. He also
placed his reliance upon following documents:
Description of documents Exh. No.
Extract of registration of firm Exh. 26
Deed of partnership Exh. 27 and 28
5 original invoices Exh. 29 to 33
Delivery challans Exh. 34 to 38
3 cheques Exh. 39 to 41
3 cheque returned memos Article-A to
2 Original cheque Exh. 42 and 43
2 Cheque returned memos Exh. 66 and 67
Office copy of notice Exh. 44
Postal receipt Exh. 45
A. D. card Exh. 46
Track report along with 65 (B) Evidence Act Exh. 47
Extract of ledger account Exh. 48
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the partner of the complainant has filed his evidence affidavit
at Exh. 21. As per his evidence, complainant is a partnership firm
running in the name M/s. Usman Umar & Sons and carrying on
business of trading in building material etc. Accused No. 1 is a private
limited company and accused No. 2 is a managing director and
responsible for day-to-day affairs of accused No. 1. As per the demand
-- 8 of 23 --
9 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
of accused, he supplied the required building materials to the accused.
The building materials was delivered to the accused on credit basis and
accused assured to pay the amount within 45 days from the date of
delivery. He has raised invoices towards the supply of building material.
As per his evidence initially till 09/11/2017, the accused was regular in
making payment. In the last week November 2017, accused had placed
orders to him and he has supplied the various quantity of OPC/PPC
cement to the accused. He has issued invoices of Rs. 8,90,022.40/-
against the accused.
11. It has further come in his evidence that for the payment of said
liability against the invoices, the accused has issued two cheques
bearing No. 304427 and 304429 dated 25/11/2017 and 30/11/2017
respectively drawn on Axis Bank, Bandra-Kurla Complex. Further, the
accused has issued another cheque No. 309006 dated 25/12/2017 of
Axis Bank, Bandra-Complex Branch to him. He had deposited these
cheques for encashment with his banker The DCB Bank, Andheri (W) on
29/01/2011 and cheque No. 304427 and 304429 were dishonoured
with reason “Payment stopped by drawer” and cheque No. 309006 was
dishonoured with reason “Funds Insufficient”. He informed this fact to
the accused and the accused assured him that he would pay the amount
within 45 days.
12. It has further come in his evidence that, in order to full and
final payment against the clearance of the said invoices, accused issued
two cheques in his favour bearing cheque No. 000497 dated
15/03/2018 for an amount of Rs. 5,00,000/- and cheque No. 000498
dated 15/03/2018 for an amount of Rs. 3,84,185/-, drawn on HDFC
Bank, Sector C, Sahara Road, Jankipuram, Lucknow – 22602, Uttar
-- 9 of 23 --
10 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
Pradesh Branch. After discussion and assurance, both the cheques were
presented for encashment by him with his banker namely DCB Bank,
Andheri West Branch on 03/05/2018. The same were returned unpaid
from drawee bank with endorsement of ‘Funds Insufficient’.
13. The accused has not conducted the cross-examination of
the complainant.
14. Before adverting towards of the merit of case, it is
necessary to deal with some legal principle regarding presumptions
contemplated in Section 118 and 139 of the Act and standards of proof
for its establishment or also for rebuttal. The Hon'ble Supreme Court of
India in
T. Vasantha Kumar v/s. Vijaya Kumari (2015) 8 SCC 378 has
held that, “the presumption mandated by Section 139 includes a
presumption that there exists a legally enforceable debt or liability. This
is of course in the nature of a rebuttable presumption and it is open to
the accused to raise a defence wherein the existence of a legally
enforceable debt or liability can be contested. However, there can be no
doubt that there is an initial presumption which favours the respondent
complainant”.
15. The Hon’ble Supreme Court of India in the case Rangappa
V. Mohan reported in AIR 2010 SC 1898, has held that, “the
presumption mandated by Section 139 of the Act does indeed include
the existence of legally enforceable debt or liability.
” In the present
case, the accused has not sent reply to the demand notice of the
complainant. Accused has admitted the signature on the cheque as it is
not denied by the accused. Therefore, it can be gathered that, accused
has not challenged the signature from cheques (Exh. 42 and 43). This
-- 10 of 23 --
11 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
shows that, the signature of accused from cheques (Exh. 42 and 43) is
not in dispute. Therefore, the presumptions under Section 118 and 139
of the Act are raised in favor of complainant.
16. The Hon'ble Supreme Court of India in case of
M.S.
Narayan Menon @ Mani V/s. State of Kerala and another (Appeal (Cri.)
1012 of 1999 decided on 04/07/2006) has laid down the rules
regarding the standards of proof for establishment of case as well as of
rebuttal of defence in the case filed under Section 138 of the Act. The
Hon'ble Supreme Court of India has observed that
“It is not necessary for the defendant to
disprove the existence of consideration by way of direct
evidence. The standard of proof evidently is pre-
ponderance of probabilities. Inference of pre-ponderance of
probabilities can be drawn not only from the materials on
records but also by reference to the circumstances upon
which he relies. Presumption drawn under a statute has
only an evidentiary value. Presumptions are raised in terms
of the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another.”
17. The Hon'ble Supreme Court of India in case of Sumeti VIJ
V/s. M/s. Paramount Tech Fab, Criminal Appeal No(s) 292 of 2021,
(Arising out of SLP (Crl.) No (s). 8498 of 2019), in which the decision
of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another, 4 (2019)
18 SCC 106 is discussed and wherein it has laid down the procedure as
to how the accused can rebut the presumption under Section118 and
139 of the Act,
“The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and
debt did not exist or that under the particular circumstances
of the case the non-existence of consideration and debt is so
probable that a prudent man ought to suppose that no
-- 11 of 23 --
12 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
consideration and debt existed. To rebut the statutory
presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need
not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has to
be brought on record for getting the burden of proof shifted
to the complainant. To disprove the presumptions, the
accused should bring on record such facts and
circumstances, upon consideration of which, the court may
either believe that the consideration and debt did not exist
or their non-existence was so probable that a prudent man
would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied
upon are compelling, the burden may likewise shift again
on to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act. The accused
has also an option to prove the non-existence of
consideration and debt or liability either by letting in
evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in
the complaint, the case set out in the statutory notice and
evidence adduced by the complainant during the trial. Once
such rebuttal evidence is adduced and accepted by the
court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue”.
-- 12 of 23 --
13 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
18. The Hon'ble Bombay High Court in the case of
Vishnu Vs.
State of Maharashtra (Cri. Rev. Application No. 176/2015 decided on
24/01/2019) observed that,
“There cannot be any manner of dispute with
the proposition that once the presumption arising under
Section 118 read with Section 139 of the Act is raised, it can
be rebutted by the accused on preponderance of probability
at the trial. This can be done on the basis of cross-
examination of the complainant and his witnesses, if any,
and/or by leading independent defence evidence.”
19
. As accused has not challenged his signature on the cheques
(Exh. 42 and 43), the presumptions under Section 118 and 139 of the
Act are raised in favor of complainant. Therefore, in view of the
observations given in case of Rangappa V/s. Sri Mohan (Cited Supra),
the accused has to raise a probable defence which creates doubts about
the existence of a legally enforceable debt or liability and the
prosecution can fail. It also makes clear that, mere denial is not
sufficient to rebut the presumption which is raised in favor of
complainant. As observed in the case of
Vishnu Vs. State of Maharashtra
(cited supra), accused has many modes to bring on record his defence
e.g. by replying upon notice, complaint, complainant's evidence and
also by mode of cross examination, his own testimony or of other
witnesses, if cross examined and also through statement of accused
recorded under section 313 of the Code. In the present case, accused
did not conduct the cross-examination of the complainant nor remain
present for recording of statement U/s. 313 of the Code.
20. In the case in hand, as I observed above the accused did
not avail the opportunity available to him to rebut the presumption.
-- 13 of 23 --
14 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
Because the accused did not conduct cross-examination of the
complainant nor remain present for recording statement U/s. 313 of the
Code. Per-contra, the complainant has produced the extract of
registration of firm at Exh.26, deed of partnership at Exh. 27 and 28,
invoices at Exh. 29 to 33, delivery challan at Exh. 34 to 38. These
documents are filed by the complainant in support of his contentions
and to show that, the cheques were issued for repayment of balance
amount. Therefore, it becomes clear that the accused has utterly failed
to rebut the presumption raised under Section 118 & 139 of the Act.
Therefore, I hold that the complainant has duly proved that accused has
issued the subject cheque from his account in favour of the complainant
towards the legally enforceable debt. Hence, point No. 1 is answered in
the “affirmative”.
As to Point No. 2:-
21. As per contentions and evidence of complainant, the
cheque No. cheque No. 000497 (Exh. 42) and cheque No. 000498 (Exh.
43) were presented for encashment. However, the cheques were
returned with remark as “Funds Insufficient”. In support of said
contentions, the complainant has examined one bank witness namely
Shivakant Tiwari (C.W.2) at Exh. 64. As per his evidence, he is working
as a Deputy Manager in DCB Bank, Andheri branch. He brought 5
cheque returned memos which bears seal of the bank and bears the
signature of bank official. Therefore, the cheque returned memos are
proved and those are at Exh. 66 to 70.
22. Nothing is brought on record by the accused to rebut the
presumption in respect of bank memos (Exh. 66 and 67). After perusal
of said memos, it is seen that the cheque No. 000497 (Exh. 42) and
-- 14 of 23 --
15 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
cheque No. 000498 (Exh. 43) dishonored for reason 'Funds Insufficient'.
However, nothing brought by the accused on record to show his
bonafide as well as also to show that at the relevant time, the amount
mentioned in the cheques were pending in his account. Hence, no
hurdle to held that the cheques were dishonored with reason 'Funds
Insufficient'. Consequently, point No. 2 is answered in the “affirmative”.
As to Point Nos. 3 and 4 :-
23. As per evidence of Mohd. Rafiq Usman Momin (C.W. 1),
after dishonor of cheques (Exh. 42 and 43), complainant issued demand
notice dated 22/05/2018 (Exh. 44). The complainant has filed postal
receipt at Exh. 45 to show that, the notice was issued on the correct
address of the accused. In support of said contention, the complainant
produced demand notice dated 22/05/2018 (Exh. 44), postal receipts
(Exh. 45) and A.D. cards (Exh 46). Upon perusal of demand notice
(Exh. 44), postal receipts (Exh. 45) and A.D. cards (Exh. 46), it is seen
that, the complainant issued demand notice on 22/05/2018 to the
accused and same was received by the accused. The demand notice was
sent on the following address :-
To,
M/s. KRP Infrastructures & Builders Pvt. Ltd.
‘C’ Wing, 904, Building No. 2,
Gaurav Paradise, Mira Road East,
Thane 401 107.
24. Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipt at Exh. 45 and A. D. Card at
Exh. 46 that, the said notice was delivered on the correct address of
accused. Therefore, there is no hurdle to held that complainant sent
-- 15 of 23 --
16 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
demand notice on the correct address of accused. Here, it is necessary
to mention the observations given by Hon'ble Supreme Court of India
in case of C. C. Alavi Haji V/s. Palapetty Muhammeed and anr reported
in All MR (Cri.) 2007. Wherein it is observed by Hon'ble Supreme Court
of India that,
“15. Insofar as the question of disclosure of necessary particulars
with regard to the issue of notice in terms of proviso (b) of Section
138 of the Act, in order to enable the Court to draw presumption
or inference either under Section 27 of the G.C. Act or Section 114
of the Evidence Act, is concerned, there is no material difference
between the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing the drawer
of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands
complied with. It is needless to emphasise that the complaint must
contain basic facts regarding the mode and manner of the issuance
of notice to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section 138 of
the Act, the Court is required to be prima facie satisfied that a case
under the said Section is made out and the aforenoted mandatory
statutory procedural requirements have been complied with. It is
then for the drawer to rebut the presumption about the service of
notice and show that he had no knowledge that the notice was
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of
notice is a clear departure from the rule of Criminal Law, where
there is no stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not receive the
notice sent by post, can, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of summons
(by receiving a copy of complaint with the summons) and,
therefore, the complaint is liable to be rejected. A person who does
-- 16 of 23 --
17 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
not pay within 15 days of receipt of the summons from the Court
along with the copy of the complaint under Section 138 of the Act,
cannot obviously contend that there was no proper service of
notice as required under Section 138, by ignoring statutory
presumption to the contrary under Section 27 of the G.C. Act and
Section 114 of the Evidence Act. In our view, any other
interpretation of the proviso would defeat the very object of the
legislation. As observed in Bhaskarans case (supra), if the giving of
notice in the context of Clause (b) of the proviso was the same as
the receipt of notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section 138 of
the Act.”
In the matter in hand also, as discussed earlier, it is duly
established that the complainant sent demand notice on the correct
address of accused. As observed by Hon’ble Supreme Court of India in
the case of
C. C. Alavi Haji V/s. Palapetty Muhammeed and anr. (cited
supra), when the notice is sent by registered post by correctly
addressing the drawer of the cheque, the mandatory requirement of
issue of notice in terms of Clause (b) of proviso to Section 138 of the
Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
25. As already discussed in earlier points, it becomes clear that
the subject cheques (Exh. 42 and 43) were dishonored on 04/05/2018
for the reason of ‘Funds Insufficient’. It is seen from the record that, the
notice (Exh. 44) was posted on 28/05/2018 to the accused and so, it is
seen to be sent within 30 days of dishonor of cheque. As discussed
earlier, notice was served upon the accused. It is not defence of the
accused that he repaid the cheque amount within 15 days of notice and
summons of this proceeding. So, point Nos. 3 and 4 are answered in the
“affirmative”.
-- 17 of 23 --
18 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
As to Point No.5 :
26. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are proved by
the complainant. As already discussed in earlier points, it becomes
clear from memos (Exh. 66 and 67) that the cheques (Exh. 42 and 43)
was dishonored on 04/05/2018. The notice (Exh. 44) was sent on
28/05/2018 and so, it is seen to be issued within 30 days of dishonor of
cheques (Exh. 42 and 43). Therefore, the accused has to pay cheques
amount within fifteen days from 29/05/2018 but accused failed to pay
it. Therefore, the cause of action for this complaint was arose on
14/06/2018. The complainant has to file the complaint within 30 days
from the day of cause of action. The complaint was filed on
12/07/2018. Therefore, the complaint is seen to be filed within
limitation. Hence, in view of entire evidence of the complainant and
failure of the accused to rebut presumptions given under Section 118
and 139 of the Act, it becomes clear that the accused has committed an
offence punishable u/s 138 of the Act. Consequently, point No. 5 is
answered in the “affirmative”.
AS TO POINT NO.6
27. 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. 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 him vide Section 3 to 5 of the Probation of Offenders Act,
-- 18 of 23 --
19 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
1958. Therefore, the accused is called upon to state on the point of
sentence.
Mumbai (Y. P. Pujari )
Date:- 02/07/2026 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
28. Accused and his advocate are absent. Further, the
complainant is absent but his advocate is present. Ld. advocate for the
complainant submitted that, maximum punishment may be awarded.
29. Further it would not be illegal to pass the Judgment of
conviction in absence of accused as Sec. 353 (6) and Sec. 418 (2) of
Code of Criminal Procedure empowers the court to pronounce
Judgment even of conviction in absence of accused and to issue
conviction warrant if court find it to be just and proper. Hence, coupling
the provisions laid down under section 353(6) and 418(2) of Code of
Criminal Procedure with the guidelines to dispose of the old cases
expeditiously. I have also perused the decision of Hon’ble Bombay High
Court in the case of Navneet Singh Gogia and 2. Simran Kaur Gogia
V/s. 1. The State of Maharashtra and 2. Sushma B. Chandak, CRIMINAL
REVISION APPLICATION NO.70 OF 2023 WITH INTERIM APPLICATION
NO. 1696 OF 2023, decided on 21/01/2025. It has held that,
“47. After considering the above observation in all the judgments,
I am inclined to take a view, in a case before this Court when it is
found out that the accused is not attending the trial, nor sought
for dispensing the personal attendance and not represented by the
advocate, the trial Magistrate is justified in proceeding in absence
of the accused and without recording 313 statement also.
However, when such power can be exercised is a question of fact.
-- 19 of 23 --
20 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
Trial Court can consider :- a) for how many occasions accused has
remained absent b) steps taken by the complainant to secure
presence of the accused. c) reason why presence could not be
secured. d) whether all modes permissible as per law were
exhausted. After ascertaining all factors, then only such power can
be exercised. Above are few of the factors.”
Perusal of above referred decision and cited provisions, I found it to be
just and proper to pass the Judgment of conviction in absence of
accused where the accused is bent upon to cause delay rather exercising
his rights for defence. Thus, I do not find any reason to keep the case
pending when accused himself is not willing to defend himself or even
to appear before court. Considering the age of case and the chances
given to the accused I find it to be justifiable and proper not to wait
further and pronounce the Judgment in absence of accused.
30. The object of the Act is to enhance the credibility of the
negotiable instruments. The cheques involved in the case in hand are of
Rs. 8,84,185/-. In the present matter, on 04/05/2018 the disputed
cheques were presented to the drawee bank. If it would have had
encashed regularly, complainant could have received the amount in the
month of May 2018. That amount is admittedly lying with the accused.
The Hon’ble Supreme Court of India in the case of
R.Vijayan V. Baby
and anthers AIR 2012 SC 528, has discussed and expressed several
aspects to determine the amount of compensation and interest on the
cheque amount. Para Nos. 14 to 18 of the above judgment needs to be
reproduced here and those are as under:
“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
the power to levy fine upto twice the cheque amount
-- 20 of 23 --
21 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
Direction to pay compensation by way of restitution in
regard to the loss on account of dishonour of the cheque
should be practical and realistic, which would mean not only
the payment of the cheque amount but interest thereon at a
reasonable rate. Uniformity and consistency in deciding
similar cases by different courts, not only increase the
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice.”
31. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding 9
% per annum interest on the cheques amount by way of compensation
to the complainant. If interest on cheques total amount (Rs. 8,84,185/-)
at the rate of 9 % p.a. is calculated for the period of 95 months i.e. from
the filing of present complaint (12/07/2018 to 02/07/2026), it comes
to Rs. 6,29,981/-. Thus, the amount of Rs. 15,14,166/- is necessary to
give to the complainant as an compensation.
32. The object of the Act is to enhance the credibility of the
negotiable instruments. There is no criminal antecedent of accused
came on record. Thus, after considering said circumstances, amount of
cheques, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for nine months will be proper and justified.
33. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
-- 21 of 23 --
22 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed:
ORDER
1. Accused No. 2. Mr. Rahul Pathak- director of accused
No.1. KRP Infrastructures & Builders Pvt. Ltd., Age :
Adult, is convicted under Section 255 (2) of the Code
of Criminal Procedure, 1973 for an offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 and sentenced to suffer simple
Imprisonment for nine months.
2. Accused is directed to pay compensation Rs.
15,14,166/- (Rs. Fifteen Lacs Fourteen Thousand One
Hundred Sixty Six Only) to the complainant within
three months from today, in default to suffer Simple
Imprisonment for one month.
3. Accused to surrender to his bail bond.
4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
-- 22 of 23 --
23 C. C. NO. 2782/SS/2018
CNR No. : MHMM19-007754-2018
6. Today i.e. on the date of judgment accused remained
absent, hence issue standing Non-bailable warrant against
the accused for his arrest through concerned police station
for execution of sentence in view of Section 418 (2) of
Cr.P.C.
7. The copy of this Judgment shall be send to the convicted
accused, free of cost, in view of section 363(1) of the Code
of Criminal Procedure, 1973.
8. Dictated and pronounced in open court.
Mumbai (Y. P. Pujari)
Date:- 02/07/2026 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 02/07/2026
Typed On : 02/07/2026
Signed On : 02/07/2026
-- 23 of 23 --