Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 3062/SS/2018
Filed on : 06/08/2018
Registered on : 06/08/2018
Decided on : 12/01/2024
Duration : 05Y. 05M. 06D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 3062/SS/2018
CNR: MHMM190078512018
Exh. No.
Mr. Sudip Pandey.
1302/Kia Park,
Opp. Country Club, Prathamesh Complex,
Veera Desai Road, Andheri (W),
Mumbai 400053 …Complainant
Versus
1. Sodhi Builders.
Gala No. 4,
Opp. Plot No. 79CD, Govt. Industrial Estate,
Bhabrekar Road, Kandivali (W),
Mumbai – 400067.
2. Kartar Sodhi.
Gala No. 4,
Opp. Plot No. 79CD, Govt. Industrial Estate,
Bhabrekar Road, Kandivali (W),
Mumbai – 400067.
3. Kamaljeet Sodhi.
Gala No. 4,
Opp. Plot No. 79CD, Govt. Industrial Estate,
Bhabrekar Road, Kandivali (W),
Mumbai – 400067. ...Accused
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2 C. C. No. 3062/SS/2018
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Satish Goud and Shri. Sairaj Dable for the complainant.
Advocate Deepak Malkani for accused.
JUDGMENT	JUDGMENT
(Delivered on 12/01/2024)
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.)
Bonsai facts of the complaint are as under :
2] As per case of complainant, accused no. 1 is a partnership firm, of
which accused nos. 2 and 3 are the partners. Accused no. 1, through its
partners engaged in the business of construction. Complainant was in
need of residential flats to accommodate his family members. In the
year 2013, accused represented to the complainant that, accused have
got development right of larger property situated at Village Patembhi,
Tal. Palghar, Dist.: Thane. Complainant purchased two flats from
accused no. 1 bearing flat no. 101 and 102 situated on 1st floor in A
wing in a building known as Sodhi Presidency, Situated at Village
Patembhi.
3] It is further case of complainant that, in the year 2013 accused
were in dire need of money and therefore, they requested to
complainant for loan. Accordingly, complainant gave loan of Rs.
20,00,000/ and same was repaid by the accused in the year 2014 and
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3 C. C. No. 3062/SS/2018
therefore relations were developed between the parties. During
construction of building at Patembhi, again accused were in need of
money and hence on request of accused in the year 201516,
complainant invested an amount of Rs. 45,00,000/ with the accused of
which details are as under.:
Sr. No. Date Bank
Name
Cheque
No.
Amount Purpose
1. 30/03/2015 ICICI RTGS 10,00,000/ Loan
2. 30/03/2015 ICICI RTGS 15,00,000/ Loan
3. 14/06/2016 Kotak 000019 20,00,000/ Loan
4] For the above mentioned investment, accused gave cheque No.
000151 for an amount of Rs. 10,00,000/, cheque no. 000100 for an
amount of Rs. 15,00,000/ and cheque No. 564622 for an amount of Rs.
20,00,000/. So far as first 10,00,000/ is concerned, accused could
not return the money and hence he agreed to pay 2% interest per
month i.e. Rs. 20,000/ per month till the repayment of entire Rs.
10,00,000/, but he never returned the said amount.
5] So far as loan of Rs. 15,00,000/ is concerned, in addition to
above mentioned cheque, accused also alloted flat no. G3, on Ground
floor, in Dwing, from the same project, by way of additional security.
In the allotment letter, accused mentioned that, he would pay 2%
interest per month for one year but again he could not return amount
within one year as the market was bad and he agreed to keep on paying
the 2% interest per month, i.e. Rs. 30,000/ per month, till an amount
of Rs. 15,00,000/ was returned, but he never returned said amount.
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6] So far as loan of Rs. 20,00,000/ is concerned, accused had
agreed to repay it within one year and as a security he alloted flat no.
G3 on ground floor in Cwing from Sodhi Residency situated at
Patembhi. Like earlier letter, in this allotment letter also, accused
agreed to pay 2% interest per month i.e. Rs. 40,000/ per month till
entire loan amount of Rs. 20,00,000/ was returned, but he never
returned said amount.
7] After receipt of possession of the flats, which complainant had
purchased from accused, complainant realized that, accused has
engaged in the unfair and malpractice in their business. Therefore,
complainant reported about malpractice of accused to the RERA.
8] Inspite of specific promise, accused did not return an amount of
Rs. 45,00,000/ to the complainant, but he keep on paying interest only,
which could not serve complainant's purpose, as the complainant was in
need of the money for his business and he had to suffer gravely losses,
due to unavailability of funds. Even for getting interest also,
complainant had to chased very hard and inspite of that, accused was
very irregular in payment of interest. Eventually, the accused stopped
receiving calls and replying to the complainant's messages. Therefore,
complainant left with no other option, but to deposit the disputed
cheques after informing the accused through messages, to which
accused didn't respond.
9] It is further case of complainant that, cheques were bearing the
same date of maturity and hence complainant presented following
cheques for clearance with his banker, however same were returned
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unpaid for a reason “Funds Insufficient”, of which details are as
follows:
Sr. No. Cheque
No.
Date Amount Memo of
dishonoured
date
Reason of
Dishonour
1. 000151 07/07/2018 10,00,000/ 10/07/2018 Fund
Insufficient
2. 000100 07/07/2018 15,00,000/ 10/07/2018 Funds
Insufficient
3. 564622 07/07/2018 20,00,000/ 10/07/2018 Funds
Insufficient
10] After dishonoure of cheque, complainant issued statutory demand
notice to the accused on 13/07/2018, through RPAD, calling upon
accused to pay the cheque amount, within 15 days from the date of
service of notice. Notice was duly served upon accused No. 1 to 3 on
14/07/2018. However, accused failed to make the payment. 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 06/08/2018.
11] 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.
12] In order to prove guilt of accused, complainant examined himself
(C.W. 1) by filing his affidavit in lieu of examinationinchief at Exh. 26
and additional affidavit at Exh. 66, vide section 145 of the Negotiable
Instrument Act. Besides oral evidence, complainant has relied upon
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following documentary evidence that includes:
Description of documents Exh. No.
Three original cheques Exh. 35 to 37
Cheque returned memos Exh. 38 to 40
Demand notice Exh. 41
Reply sent by accused Exh. 42
Rejoinder by the complainant Exh. 43
Postal receipts Exh. 44 to 46
Acknowledgement Exh. 47 and 48
Bank statement ArticleA
Order passed by RERA authority Exh. 49
Copy of 2 allotment letters Exh. 50 and 51
Letter by Sodhi builders to complainant Exh. 52
13] After completion of complainant's evidence, statement of accused
No. 2 and 3 vide Section 313 of Cr.P.C. was recorded at Exh. 56 and 57
wherein accused have taken defence of falsely implication. Accused in
support of their defence examined accused no. 2 Kamaljit Singh Sodhi
at Exh. 58, one Mr. Manoj Pathak (C.W.2) at Exh. 62. In addition to
oral evidence, accused has also relied upon following documentary
evidence:
Description of documents Exh. No.
Bank account statement Exh. 60 to 63
Incometax return alongwith
balancesheet supported by
certificate of chartered account
Exh. 64 collectively.
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14] Complainant filed his written notes of argument at Exh.74 while
Ld. Advocate for accused has filed his written notes of argument at Exh.
75. In support of his argument, Ld. Advocate for complainant has relied
upon following judgments of Hon'ble High Court and Supreme Court:
i) Vandana Pandey V/s. Abhilasha Anil Pandey, decided in
Criminal appeal no. 360/2017, wherein Hon'ble Bombay High Court
has observed as under:
“13. When the complainant (appellant in the present case) asserted that
the cheque was returned or dishonoured, it was for her to prove this
basic fact. Section 146 of the said Act provides that if the complainant
places on record a slip or memo issued by the bank having official mark
of the bank thereon, denoting that the cheque was dishonoured, it
would be presumed that such cheque was dishonoured until such fact
was disproved. Thus, if such a document was placed on record by the
appellant in the present case, it would constitute prima facie evidence of
dishonour of cheque and burden would have been entirely on the
respondent to disprove such a fact. But, when the memo produced in
the present case by the appellant did not bear official mark of the bank,
there was no document as contemplated under Section 146 of the said
Act to presume that the fact of dishonour of cheque had been proved by
the appellant. The burden continued to lie on the appellant to prove the
basic fact of dishonour of cheque, in the facts and circumstances of the
present case.
14. In such a situation, mere statement made in the statutory notice
and the complaint filed before the Court would not constitute proof of
dishonour of cheque, unless further evidence to corroborate the same
was placed on record on behalf of the appellant. The appellant is not
justified in claiming that such statements would suffice as proof of
dishonour of cheque because the respondent failed to enter the witness
box in support of her defence. As the complainant, it was for the
appellant to prove the fact of dishonour of cheque by cogent evidence.
The appellant could have examined the bank official to prove that the
cheque had been indeed dishonoured, but, she failed to do so.
15. The appellant could have placed on record a certificate
contemplated under Section 65B of the Indian Evidence Act, 1872, in
respect of the memo of the Bank, which was allegedly a computer
generated electronic record. But, no such evidence was placed on
record. The trial Court has also held that there was lack of evidence to
show even deposit of the cheque because deposit slip was not placed on
record by the appellant. But, a perusal of the cheque in question
(Exhibit21) does show that stamp of the bank in which the cheque was
deposited is very much present on the cheque. To that extent, the trial
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8 C. C. No. 3062/SS/2018
Court was not right in holding that even the proof of deposit of cheque
was not on record. Yet, this fact alone does not take the case of the
appellant any further because the stamp affixed on the cheque shows
only name of the bank and there is nothing to signify the date on which
the cheque was deposited in the bank. Even as per the case of the
appellant, the cheque in question was deposited twice and it is clear
that there is no cogent evidence placed on record by the appellant to
show dishonour of the said cheque.
16. When the basic fact of dishonour of cheque was not proved by the
appellant and the burden was not discharged, offence under Section
138 of the said Act could not be said to have been committed by the
respondent. Another important aspect of the present case is that when
there is lack of evidence to show dishonour of cheque and consequently
the date when the cheque was dishonoured, there is no reference point
to ascertain as to whether the notice for demand of payment was issued
by the appellant to the respondent within the period of 30 days of
receipt of information from the bank regarding return of cheque as
unpaid, as provided under proviso (b) to Section 138 of the said Act.
This is the reason why the trial Court has held that the appellant failed
to prove that she made demand for payment of amount within the
statutory period, as the statutory period could not be computed in the
facts of the present case.
17. Analysis of the provisions of the said Act, particularly Sections 138,
142 and 146 thereof, shows that cognizance of the offence under Section
142 of the said Act could not have been taken by the Court in the
present case because the basic fact of dishonour of cheque could not be
proved by the appellant. The appellant failed to prove dishonour of
cheque by any mode other than the one provided under Section 146 of
the said Act. The memo of return of cheque in the present case
admittedly did not bear official mark of the Bank, due to which
presumption in favour of the appellant did not arise. Therefore, the
complaint in the present case was correctly rejected by the trial Court,
thereby acquitting the respondent.”
ii) Smt. Sumedha Anil Chaudhary V/s. State of Maharashtra
wherein Hon'ble Bombay High Court has observed to the effect that,
accused has failed to prove repayment of amount and he also failed to
prove his other defence and therefore presumption u/s. 139 of N.I.Act
was not rebutted.
iii) Birsingh V/s. Mukesh Kumar, decided in criminal appeal no.
230/2019 wherein Hon'ble Supreme Court has observed as under:
“If a signed blank cheque is voluntarily presented to a payee, towards
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9 C. C. No. 3062/SS/2018
some payment, they payee may fill up the amount and other
particulars. This in itself would not invalidate the cheque. The Onus
would still be on the accused to prove that the cheque was not in
discharge of a debt or liability by adducing evidence.”
iv) Ashok Yeshwant Badave V/s. Surendra Madhavrao
Nighojakar, decided in criminal appeal no. 293/2001 wherein
Hon'ble Supreme Court has observed as under:
“Postdated cheques are not invalid, but the banker should not pay
such a cheque if presented before the date it bears. If, therefore, a
cheque dated on a Sunday is presented on the previous business day,
it should be returned with the answer `post dated. A postdated
cheque, however, if presented at or after its ostensible date, should
be paid though the banker knows it to be postdated, and even if it
has been presented before the date and refused payment. ”
In the same judgment Hon'ble Supreme Court has further observed that:
“For prosecuting a person for an offence under Section
138 of the Act, it is inevitable that the cheque is presented
to the banker within a period of six months from the date
on which it is drawn or within the period of its validity
whichever is earlier. When a post dated cheque is written
or drawn, it is only a bill of exchange and so long the
same remains a bill of exchange, the provisions of Section
138 are not applicable to the said instrument. The post
dated cheque becomes a cheque within the meaning of
Section 138 of the Act on the date which is written
thereon and the 6 months period has to be reckoned for
the purposes of proviso (a) to Section 138 of the Act from
the said date. Thus while respectfully agreeing with the
law laid down by this Court in the case of Anil Kumar
Sawhney, we hold that six months period shall be
reckoned from the date mentioned on the face of the
cheque and not any earlier date on which the cheque was
made over by the drawer to the drawee. ”
v) Hiten Dalal V/s. Badrinath Banerjee wherein Hon'ble Supreme
Court has observed as under:
“This section provides that "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". The effect of these presumptions is to
place the evidential burden on the appellant of proving
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that the cheque was not received by the Bank towards
the discharge of any liability Because both Sections 138
and 139 require that the Court "shall presume" the
liability of the drawer of the cheques for the amounts for
which the cheques are drawn, as noted in State of
Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is
obligatory on the Court to raise this presumption in
every case where the factual basis for the raising of the
presumption had been established. "It introduces an
exception to the general rule as to the burden of proof in
criminal cases and shifts the onus on to the accused"
(ibid). Such a presumption is a presumption of law, as
distinguished from a presumption of fact which describes
provisions by which the court "may presume" a certain
state of affairs. Presumptions are rules of evidence and
do not conflict with the presumption of innocence,
because by the latter all that is meant is that the
prosecution is obliged to prove the case against the
accused beyond reasonable doubt. The obligation on the
prosecution may be discharged with the help of
presumptions of law or fact unless the accused adduces
evidence showing the reasonable possibility of the non
existence of the presumed fact.
vi) Vinay Parulekar V/s. Pramod Meshram, decided on
06/12/2017 wherein Hon'ble Bombay High Court has observed as
under:
“14. Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that it is not
necessary for the accused to disprove the existence of
consideration by way of direct evidence. Inference of
preponderance of probabilities can be drawn not only from the
materials on record but also by reference to the circumstances
upon which he relies. The accused can raise a probable defence
from the material brought on record by him, so also by the
complainant himself. Though it is obligatory on the Court to
raise presumptions contemplated under Sections 118, 138 and
139 in every case, where the factual basis for raising of the
presumption has been established, what is needed for the
accused is to raise a probable defence or that the consideration
does not exist. The presumption could be rebutted either by
leading evidence or bringing facts on record in cross
examination of the complainant which could make the case of
the complainant improbable that the cheque was issued in
discharge of any debt or other liability or through the
documents produced and proved through the complainant.”
vii) Dipakkumar V/s. State of Bihar, wherein Hon'ble Patana High
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Court has observed as under:
“14. So far the question of existence of basic ingredients for drawing
of presumption Under Sections 118 and 139 the NI Act is
concerned, apparent it is that the accusedAppellant could not deny
his signature on the cheques in question that had been drawn in
favour of the complainant on a bank account maintained by the
Accused for a sum of Rs. 3 lakhs each. The said cheques were
presented to the Bank concerned within the period of their validity
and were returned unpaid for the reason of either the balance being
insufficient or the account being closed. All the basic ingredients of
Section 138 as also of Patna High Court CR.APP(U/S) No.4 of 2018
Sections 118 and 139 are apparent on the face of the record. The
Trial Court had also consciously taken note of these facts and had
drawn the requisite presumption. Therefore, it is required to be
presumed that the cheques in question were drawn for
consideration and the holder of the cheques i.e., the complainant
received the same in discharge of an existing debt. The onus,
therefore, shifts on the accusedAppellant to establish a probable
defence so as to rebut such a presumption.”
15] On the other hand, Ld. Advocate for accused has argued that,
said complaint is a premature and hence same is not maintainable. In
support of his argument, he relied upon judgment passedby Hon'ble
Supreme Court in the case of Yogendra Pratap Singh V/s. Savitri
Pandey, decided in criminal appeal 605/2012 dated 19/09/2014
wherein in para no. 42, wherein Hon'ble Supreme Court has observed
as under:
“42. Section 142 of the NI Act prescribes the mode and so also the
time within which a complaint for an offence under Section 138 of
the NI Act can be filed. A complaint made under Section 138 by the
payee or the holder in due course of the cheque has to be in writing
and needs to be made within one month from the date on which the
cause of action has arisen under clause (c) of the proviso to Section
138. The period of one month under Section 142(b) begins from the
date on which the cause of action has arisen under clause (c) of the
proviso to Section 138. However, if the complainant satisfies the
Court that he had sufficient cause for not making a complaint
within the prescribed period of one month, a complaint may be
taken by the Court after the prescribed period. Now, since our
answer to question (i) is in the negative, we observe that the payee
or the holder in due course of the cheque may file a fresh complaint
within one month from the date of decision in the criminal case
and, in that event, delay in filing the complaint will be treated as
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having been condoned under the proviso to clause (b) of Section
142 of the NI Act. This direction shall be deemed to be applicable to
all such pending cases where the complaint does not proceed
further in view of our answer to question (i). As we have already
held that a complaint filed before the expiry of 15 days from the
date of receipt of notice issued under clause (c) of the proviso to
Section 138 is not maintainable, the complainant cannot be
permitted to present the very same complaint at any later stage. His
remedy is only to file a fresh complaint; and if the same could not
be filed within the time prescribed under Section 142(b), his
recourse is to seek the benefit of the proviso, satisfying the Court of
sufficient cause. Question (ii) is answered accordingly. ”
16] Ld. Advocate for accused has further argued that, alleged
transaction involved in this case is a illegal money lending transaction.
Complainant has advanced loan on interest basis, without having valid
money lending license. In support of his argument, he relied upon
judgment passed by Hon'ble Bombay High Court in the case of Monika
Sunit Ujjain V/s. Sanchu menon, decided in criminal revision
application no. 394/2015 dated 02/08/2022, has discussed about
said issue. In this matter, before Hon'ble High Court, complainant had
advanced friendly loan of Rs. 12,00,000/ to the accused on interest
basis. Memorandum of Understanding was executed between the
parties and as per said MOU, accused had issued cheques for security
purpose. Hon'ble Ld. Magistrate issued process against the accused for
the offence punishable U/sec. 138 of Negotiable Instrument Act. Said
order was challenged by filing revision before Hon'ble Sessions Court.
Hon'ble Sessions Court allowed the revision and set aside order passed
by Hon'ble Magistrate Court and therefore aggrieved by said order,
complainant preferred criminal revision before Hon'ble High Court.
Hon'ble High Court rejected the Criminal Revision application and
uphold the order passed by Hon'ble sessions Court in following words :
10. I have perused the order dated 26.06.2015 which is impugned in
this proceedings. The learned Sessions Judge while allowing the
revision application preferred by respondent Nos. 1 and 2 has observed
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that the contract which is forbidden by law is void contract. In cases of
money lending business without license, the provisions under Section
138 of Negotiable Instruments Act are not attracted. According to the
complainant huge amount of Rs.4,50,000/ was parted to the accused.
There was a Memorandum Of Understanding (for short “MOU”) dated
22.02.2014 between M/s. Monika Sumit Ujjain as the lender and M/s.
Saga Infra as the borrowers. As per MOU it can be gathered that the
transactions was without license. Post dated cheques were given by way
of security. I have perused the MOU and the other documents on record
considering the factual matrix of this case I do not find any reason to
interfere with the impugned order, Hence I pass the following order:
ORDER
Criminal Revision Application stands rejected and
disposed of.
17] He also relied upon judgment passed by Hon'ble Supreme Court
in the case of Dasharathbhai Patel V/s. Hitesh Patel, decided in
criminal appeal no. 1497/2022, dated 11/10/2022 wherein Hon'ble
Supreme Court has observed as under:
“Based on the above analysis of precedent, the following principles emerge:
(i) Where the borrower agrees to repay the loan within a specified timeline
and issues a cheque for security but defaults in repaying the loan within the
timeline, the cheque matures for presentation. When the cheque is sought to
be encashed by the debtor and is dishonoured, Section 138 of the Act will be
attracted;
(ii) However, the cardinal rule when a cheque is issued for security is that
between the date on which the cheque is drawn to the date on which the
cheque matures, the loan could be repaid through any other mode. It is only
where the loan is not repaid through any other mode within the due date
that the cheque would mature for presentation; and
(iii) If the loan has been discharged before the due date or if there is an
‘altered situation’, then the cheque shall not be presented for encashment.
16. The judgments of this Court on postdated cheques when read with the
purpose of Section 138 indicate that an offence under the provision arises if
the cheque represents a legally enforceable debt on the date of maturity. The
offence under Section 138 is tipped by the dishonour of the cheque when it
is sought to be encashed. Though a post dated cheque might be drawn to
represent a legally enforceable debt at the time of its drawing, for the
offence to be attracted, the cheque must represent a legally enforceable debt
at the time of encashment. If there has been a material change in the
circumstance such that the sum in the cheque does not represent a legally
enforceable debt at the time of maturity or encashment, then the offence
under Section 138 is not made out. ”
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18] He further relied upon Vinay Parulekar V/s. Pramod Meshram,
decided in criminal appeal no. 37/2006 wherein wherein Hon'ble
Bombay High Court has observed as under:
“8. The Supreme Court in Hiten P. Dalal's case (supra) had an
occasion to deal with Sections 118, 138 and 139 of the Act
exhaustively which have created several presumptions in favour of a
complainant in a prosecution under Section 138 of the Act. The
Supreme Court in this case after referring to Section 138 and 139 of
the Act observed that it is obligatory on the Court to raise this
presumption in every case where the factual basis for the raising of the
presumption has been established. It introduces an exception to the
general rule as to the burden of proof in criminal cases and shifts the
onus on the accused. The obligation on the prosecution may be
discharged with the help of presumption of law or fact unless the
accused adduced evidence showing the reasonable possibility of the
nonexistence of the presumed fact. The Supreme Court further
observed that the rebuttal does not have to be conclusively established
but such evidence must be adduced before the Court in support of the
defence that the Court must either believe the defence to exist or
consider its existence to be reasonable probable, standard of
reasonability being that of prudent man.
“14. Upon consideration of various judgments as noted hereinabove,
the position of law which emerges is that it is not necessary for the
accused to disprove the existence of consideration by way of direct
evidence. Inference of preponderance of probabilities can be drawn not
only from the materials on record but also by reference to the
circumstances upon which he relies. The accused can raise a probable
defence from the material brought on record by him, so also by the
complainant himself. Though it is obligatory on the Court to raise
presumptions contemplated under Sections 118, 138 and 139 in every
case, where the factual basis for raising of the presumption has been
established, what is needed for the accused is to raise a probable
defence or that the consideration does not exist. The presumption could
be rebutted either by leading evidence or bringing facts on record in
crossexamination of the complainant which could make the case of the
complainant improbable that the cheque was issued in discharge of any
debt or other liability or through the documents produced and proved
through the complainant.”
19] 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:
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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
complainant 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
acquitted.
REASONS
AS TO POINT NO. 1
20] 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
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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.
21] 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:
-- 16 of 31 --
17 C. C. No. 3062/SS/2018
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
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 courselies upon him.
-- 17 of 31 --
18 C. C. No. 3062/SS/2018
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.
22] 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
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
-- 18 of 31 --
19 C. C. No. 3062/SS/2018
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.
23] In order to prove their case, complainant examined himself
(C.W.1) by filing his affidavit of examinationinchief at Exh. 26 and
additional affidavit at Exh. 66, wherein he has reiterated his case from
the complaint. His evidence shows that, he had advanced loan of Rs.
45,00,000/ to the accused and in order to repay this loan, disputed
cheques were issued by the accused in his favour.
24] Ld. Advocate for accused conducted crossexamination of
complainant at length. In crossexamination, complainant admitted
that, in March 2015, he had given an amount of Rs. 25,00,000/ to the
accused and by way of security to said loan, accused had handed over
two undated cheques to him, in addition to allotment letter of flat by
way of security.
25] It is necessary to note here that, in crossexamination
complainant has denied acceptance of interest of Rs. 50,000/ per
month against said loan of Rs. 25,00,000/ given to accused in the
month of March 2015. But in complaint itself, complainant has clearly
stated that, accused had agreed to pay Rs. 30,000/ per month by way
of interest against the loan of Rs. 15,00,000/ and Rs. 20,000/ per
-- 19 of 31 --
20 C. C. No. 3062/SS/2018
month by way of interest against the loan of Rs. 10,00,000/ i.e. total
amount of Rs. 50,000/ per month. In para no. 9 of the complaint he
has clearly stated that, accused keep on just paying the interest, but did
not return principle amount, thus it is nowhere case of complainant
that, till filing of this complaint i.e. 06/08/2018, interest for any month
was not paid by the accused. In fact, he clearly stated that, accused
used to pay interest only on principle loan amount of Rs. 45,00,000/.
In demand notice also, complainant had clearly mentioned that,
accused didn't pay principle amount, but he tried to keep complainant
silences by paying interest. In view of said case of complainant, I did
not feel it necessary to look into crossexamination of complainant to
that effect. Therefore, it becomes clear that, complainant had advanced
loan of Rs. 45,00,000/ to the accused and till filing of this complaint
accused has paid interest to him @ 2% per month.
26] Complainant has further admitted that, all three cheques were
undated, when same were handed over to him. He further admitted
that, cheque for an amount of Rs. 20,00,000/ was signed by the
accused on 15/06/2016 and remaining two cheques for an amount of
Rs. 10,00,000/ and 15,000/ were signed by the accused on
30/03/2015 and on same day they were handed over to the
complainant. He further admitted that, these cheques were not issued
on 07/07/2018.
27] It is necessary to note here that, in complaint, complainant has
not mentioned about reply sent by accused, to his demand notice and
he has also not mentioned about rejoinder sent by him to the reply of
accused. However, in crossexamination, he admitted that, accused had
replied to his demand notice and it was received by complainant within
-- 20 of 31 --
21 C. C. No. 3062/SS/2018
23 days from the date it bears and further he had sent rejoinder on
27/07/2018 i.e. before filing of this complaint. In crossexamination
complainant has stated that, reply sent by him on 27/07/2018 i.e. Exh.
43 was his final notice. In this notice, he demanded an amount of Rs.
51,05,000/ and mentioned that, he is withdrawing earlier notice dated
17/07/2018. He further stated that, he calculated interest @ 2% per
month and mentioned due amount as Rs. 6,05,000/. Earlier
complainant denied receipt of interest and in fact he had denied that,
amount was given on interest basis to the accused, but later on he
admitted that, he has given loan on interest. In fact, in his evidence
affidavit in para no. 11 he stated that, he has received an amount of Rs.
22,60,000/ by way of interest from the accused. In crossexamination,
complainant has denied suggestion that, he had given loan of Rs.
1,67,35,357/ in the assessment year 201516 and Rs. 1,71,96,078/ in
the assessment year 201617 to the various person. He also denied
having engaged in the business of money lending, he further admitted
that, he doesn't have any money lending license. He also denied that,
he used to receive interest from the accused in cash.
28] In crossexamination, complainant has further admitted that, he
received Rs. 8,40,000/ through NEFT on 04/06/2018, Rs. 1,00,000/
on 08/06/2018, Rs. 50,000/ on 22/06/2018 and Rs. 6,90,000/ on
22/06/2018. However, he denied that said amount was received by
him against repayment of principle loan amount, but according to him
whatever amount received by him from the accused was against the
interest only. He further admitted that, upto 31/03/2016, principle
loan amount outstanding against the accused was Rs. 25,00,000/ only
and on 14/06/2016 he additionally advanced loan of Rs. 20,00,000/ to
the accused. He further stated that, he has not calculated how much
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22 C. C. No. 3062/SS/2018
interest was paid by the accused for the year 201617 and therefore he
cannot said that, an amount of Rs. 9,35,000/ was paid by the accused
by way of interest in financial year 201617. Lateron he stated that, an
amount of Rs. 48,500/ was received by him by way of interest for the
financial year 201617. In crossexamination, complainant has denied
that, an amount of Rs. 5,09,604/ was adjusted towards the purchase of
flat no. 102, building no. 10, Awing and Rs. 4,85,396/ were adjusted
towards the purchase of flat no. 101, Building no. 10, Awing.
Complainant has further denied that, finally an amount of Rs.
4,55,000/ was outstanding against the accused.
29] He further admitted that, on page no. 33 of Income tax return for
the assessment year 201819, he has shown receipt of an amount of Rs.
19,25,000/ from Sodhi Builders. However, in evidence affidavit, he
stated that, amount received from Sodhi builders was Rs. 8,90,000/.
When it was suggested to him, out of Rs. 19,25,000/, an amount of Rs.
8,90,000/ was received from the accused by way of interest and
remaining Rs. 10,35,000/ was against the repayment of principle
amount, he has denied suggestion and further stated that, incometax
return is wrong and whatever stated by him in his evidence affidavit is
correct. He further admitted that, in financial year 201819, he has
paid incometax of Rs. 4,41,827/ on his gross income of Rs.
22,09,928/. He further admitted that, in the year 201920, he received
an amount of Rs. 8,85,000/ from the accused. He further admitted
that, no TDS was deducted on this amount, however he denied
suggestion that, said amount was received by him as a repayment of
principle loan amount and not against the interest and due to which
TDS was not deducted on said amount.
-- 22 of 31 --
23 C. C. No. 3062/SS/2018
30] According to complainant, total interest received by him from
the accused was Rs. 22,60,000/ only, however his I.T. return shows
that, in assessment year 201819 itself, an amount of Rs. 19,25,000/
and for the assessment year 201920 he received an amount of Rs.
8,85,000/ from the accused. For the assessment year 201718, he
received an amount of Rs. 4,85,000/ from the accused. Thus, certainly
said amount is more than Rs. 22,60,000/. Thus, it shows that,
complainant has received some amount from the accused against the
repayment of principle amount also, in addition to interest.
31] It is the defence of accused that, cheque amount was not
outstanding against him but same has been already repaid by him to the
complainant. In order to prove his defence, accused No. 2 Mr. Kalamjit
Singh entered in the witness box and examined himself at Exh. 58. In
para no. 10, he has given chart about loan and details of repayment
wherein he stated that, in the year 201314, he received an amount of
Rs. 20,00,000/ from the complainant and in the year 201415, he
received Rs. 25,00,000/ and in the year 201617, he received loan of
Rs. 20,00,000/ from the complainant. He has given details about the
loan, payment of interest and repayment as under:
Financial
Year
Loan
received
from Sudip
Pandey in
Rupees
Interest
paid to
Sudip
Pandey in
Rupees
Loan repaid
during the
years in
Rupees
Loan
adjusted
towards
flat due
10/A/101
in Rupees
Loan
adjusted
towards
flat due
10/A/102
in Rupees
Balance
loan at end
of year in
Rupees
201314 20,00,000/ 2,00,000/ Nil Nil Nil 20,00,000/
201415 25,00,000/ 3,40,000/ 20,00,000/ Nil Nil 25,00,000/
201516 Nil 6,00,000/ Nil Nil Nil 25,00,000/
-- 23 of 31 --
24 C. C. No. 3062/SS/2018
201617 20,00,000/ 9,35,000/ 4,25,000/ Nil Nil 40,75,000/
201718 Nil 7,84,900/ 17,85,000/ 4,85,396 5,09,604 12,95,000/
201819 Nil 93,700/ 8,40,000/ Nil Nil 4,55,000/
32] According to him, at the end of financial year 201819, an
amount of Rs. 4,55,000/ was outstanding against him, but complainant
has denied said contention. In support of his evidence, he has
produced on record bank statement as well as he relied upon
reply/rejoinder given by the complainant to the reply notice sent by
accused. First of all, I would like to see demand notice, reply and
rejoinder of complainant. In crossexamination, complainant has clearly
stated that, reply sent by him on 27/07/2018 was a final notice issued
by him to the complainant. Complainant has produced on record copy
of demand notice at Exh. 41, wherein he has clearly stated that, cheque
amount of Rs. 45,00,000/ was outstanding against the accused.
Accused has sent reply to the demand notice on 17/07/2018, wherein
accused has clearly stated that, an amount of Rs. 5,05,000/ only is
outstanding against the accused and they shown willingness to repay
the said amount. Thereafter, complainant has sent rejoinder to reply
notice and stated that, in addition to principle amount of Rs.
45,00,000/, interest amount of Rs. 6,05,000/ is also due and payable
by accused to complainant and hence he demanded an amount of Rs.
51,05,000/ from the accused.
33] Admittedly, complainant has presented disputed cheques for
clearance on 07/07/2018 and same has been returned unpaid on
10/07/2018. It is also admitted by the complainant that, these cheques
were issued by the accused to him on 15/06/2016 and on 30/03/2015.
-- 24 of 31 --
25 C. C. No. 3062/SS/2018
In para no. 10 of the evidence affidavit, complainant has stated that, on
principle loan amount of Rs. 45,00,000/, he was entitled to receive
total interest of Rs. 29,50,000/ i.e. Rs. 50,000/ per month for 39
months in respect of loan of Rs. 25,00,000/ and Rs. 40,000/ per
month for the period of 25 months in respect of loan of Rs. 20,00,000/.
As such total amount payable by accused, against the interest was Rs.
29,50,000/. According to him, total amount payable by accused
including interest and principle was Rs. 74,50,000/.
34] In para No. 11 of evidence affidavit, complainant has mentioned
that, in between 19/11/2016 to 06/07/2017, he has received an
amount of Rs. 22,60,000/ from the accused, by way of interest, on the
principle loan amount of Rs. 45,00,000/. As discussed earlier, he
further admitted that, for the assessment year 201819, he received an
amount of Rs. 19,25,000/ and for assessment year 201920, he
received an amount of Rs. 8,85,000/ from the accused. Thus, it
becomes clear that, accused has paid more than Rs. 30 lacs to the
complainant as admitted by him in his crossexamination.
35] According to accused, he had paid some amount to the
complainant in cash. However, no any receipt to that effect has been
produced on record by the accused. It has come in the evidence of Mr.
Manoj Pathak that, accused used to pay an amount of Rs. 50,000/ per
month to the complainant, by way of interest on the principle loan
amount of Rs. 45,00,000/. His evidence further shows that, accused
had repaid an amount of Rs. 30,00,000/ to complainant leaving
balance of Rs. 15,00,000/. According to him, out of balance amount of
Rs. 15,00,000/, an amount of Rs. 10,45,000/ approximately was
adjusted towards the flat purchased by the complainant. However, no
-- 25 of 31 --
26 C. C. No. 3062/SS/2018
any documentary evidence has been produced on record by the accused
or said witness, showing that, principle amount of Rs. 30,00,000/ was
repaid by the accused and an amount of Rs. 10,45,000/ was adjusted
in the amount of flat which was purchased by the complainant from the
accused. However, certainly, in crossexamination of complainant it has
come on record that, he has received more than Rs. 30 lacs from the
accused. In short, cheque amount of Rs. 45,00,000/ was not
outstanding against the accused.
36] It is second argument of accused that, disputed cheques were
issued out of illegal money lending transaction. Admittedly,
complainant is not having money lending license with him. As per case
of complainant, he had advanced loan of Rs. 45,00,000/ to the
accused @ 2% interest per month. As per provisions of Maharashtra
Money lending Act, transaction of money lending on interest basis
without having valid money lending license is illegal and it is an offence
punishable under said act. In this regard, Hon'ble Bombay High Court
in the case of Anil Baburao Kataria V/s. Purshottam Prabhakar
Kawane, 2010 Cr.L.J 1217 , in para no. 9 and 10 of the judgment have
observed as under:
“09. Here, I may refer to the provisions of the Bombay MoneyLenders
Act, 1946. Section 5 of the said Act lays down that no money lender
shall carry on business of money lending except in the area for which
he has been granted a license and except in accordance with the terms
and conditions of such license. It is not the case of present applicant
complainant that he has any money lending license. Section 10 of the
Act lays down that no court shall pass a decree in favour of a money
lender in any suit to which said Act applies unless the court is satisfied
that at the time when the loan or any part thereof, to which the suit
relates was advanced, the moneylender held a valid license, and if the
court is satisfied that the moneylender did not hold a valid license, it
shall dismiss the suit. In other words, carrying on money lending
business without license debars a person from doing money lending
and recovering the amount through court. As per explanation to
Section 138 of the Negotiable Instruments Act "debt or other
-- 26 of 31 --
27 C. C. No. 3062/SS/2018
liability"means a legally enforceable debt or other liability. So, a loan
advanced by a money lender who is doing business of money lending
without license is not a debt or other liability and provisions of Section
138 of the Act will not apply to such transaction. In the light of above,
it cannot be said that in the present case, that the cheque issued by the
Respondent in favour of the applicant was for the liability enforceable
in law.
10. I may also refer to Section 32B(b) of the said Act,which lays down
that whoever carries on the business of moneylending at any place
without holding a valid license authorizing him to carry on such
business at such place, shall, on conviction, be punished for the first
offence with imprisonment of either description which may extend to
one year or with fine which may extend to rupees one thousand and
five hundred or with both and for the second or subsequent offence, in
addition to, or in lieu of, the penalty specified in clause (i) with
imprisonment which shall not be less than two years, where such
person is not a company, and with fine which shall not be less than
rupees five thousand, where such person is a company.”
37] Hon'ble Supreme Court in the case of M/s. P. Vaikunta Shenoy
& Co. V/s. P. Hari Sharma, decided in the case of Civil Appeal No.
5540/2001 dated 31/10/2007 has discussed about Section 2 of
Karnataka Money lenders Act and explained about business of money
lending. In this matter before Hon'ble Supreme Court, appellant had
advanced money to his supplier of goods to ensure that suppliers are
regular and are made to him rather than being diverted to other parties.
Hon'ble Supreme Court has observed as under:
“13. In view of the above discussion we are of the opinion that a
purposive interpretation has to be given to the definition of money
lenders. From this angle the appellant could not be said to be a money
lender as he was not really doing the business of money lending in the
strict sense but was only advancing loans to secure the regular supply of
areca nuts.
14. In view of the above this appeal is allowed, impugned judgment of
the High Court is set aside and the judgment of the trial court is
restored. No order as to costs.”
38] Hon'ble Bombay High Court in the case of Fauzan Shaikh V/s.
State of Maharastra, decided in Criminal Public Interest litigation
-- 27 of 31 --
28 C. C. No. 3062/SS/2018
S.T. No. 41/2019 decided on 11/12/2019, in para no. 18 and 19 of
the judgment has observed as under:
“18. Thus, the person who grants loan or advances money at interest on
the basis of negotiable instrument other than the promissory note or on
the basis of hundi are not covered under the exclusion clauses (j) and (k)
of Section 2(13) of the Act. The penal provisions of the Act would be
applicable to such persons and they would require the licence under the
Act. His debt would not be legally enforceable debt for the purposes of
Section 13 of the said Act. Unlicenced moneylender would be liable for
the prosecution and other penal actions as provided in the said Act.
Consequently, the unregistered moneylenders would be precluded from
availing the remedies of recovering of legally enforceable debt under the
Negotiable Instruments Act, 1881, Insolvency and Bankruptcy Code, the
Code of Civil Procedure, 1908, the Specific Relief Act, 1963, the Contract
Act, 1872 etc.
19. On the other hand, a person who merely advances any sum without
any interest does not require any registration under the said Act due to
exclusion in clauses (j) and (k) of Section 2(13) of the said Act. The
penal provisions of the Act are not applicable to such persons. Such
person do not require licence under the said Act and is legally entitled
to avail the remedies for recovery of legally enforceable debt under the
Negotiable Instruments Act, 1881, Insolvency and Bankruptcy Code, the
Code of Civil Procedure, 1908, the Specific Relief Act, 1963, the
Contract Act, 1872 etc. The recovery proceedings by such persons who
give advance without interest cannot be termed as harassment of
borrowers who may be agriculturist or non agriculturist, individual or
entity. Since such person who gives advance without interest do not
require the license, neither license fee prescribed under the Rules for
issuance of license is payable by him nor is there any loss of revenue to
the exchequer as alleged on this account. In fact if such a person who
gives advance without interest is prosecuted or penalized, the same
would be manifestly arbitrary and violative or provisions of Articles 14
and 21 of the Constitution of India.”
39] Admittedly in the case at hand, amount was given on interest
basis and complainant has received more than Rs. 30,00,000/ from the
accused. These cheques were issued for security purpose only against
the illegal money lending transaction. There is nothing to show that, it
was a valid transaction between the parties. Besides that, it has also
come on record that, an amount of Rs. 45,00,000/ was not outstanding
against the accused. It is necessary to note here that, complainant has
-- 28 of 31 --
29 C. C. No. 3062/SS/2018
relied upon many judgments of Hon'ble High Court and Supreme Court,
however those judgments are not supporting to the case of complainant
in relation to illegal money lending business and secondly repayment of
loan amount by the accused. I have already discussed that, on the date
of presentation of cheque, cheque amount was not outstanding against
the accused. Therefore, cheque issued out of illegal money lending
transaction and particularly when cheque amount was not outstanding
against the accused, it cannot be termed as issued for discharging
legally enforceable liability. Accused have 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
40] In order to prove that, cheques were returned unpaid,
complainant has produced on record cheque returned memos at Exh. 38
to 40. All these memos bears seal of the bank and signature of bank
officer. Cheque returned memo shows that, disputed cheques were
returned unpaid for the reason “Funds Insufficient”.
41] It is a matter of record that, cheques were returned vide memo
dated 10/07/2018 and demand notice was sent on 13/07/2018 i.e.
within limitation. Admittedly, notice was served upon accused and they
have sent reply to it and complainant has sent rejoinder to the reply. It
is a matter of record that, accused has not paid cheque amount to the
complainant within 15 days from the date of service of notice on them.
It is also matter of record that, complainant has filed this complaint on
06/08/2018 i.e. within limitation.
42] It is necessary to note here that, Ld. Advocate for accused argued
that, complainant has sent rejoinder to the reply of accused stating that,
-- 29 of 31 --
30 C. C. No. 3062/SS/2018
said rejoinder should be treated as final notice wherein he has
demanded amount more than cheque amount. In crossexamination
also, complainant has stated that, he had sent final notice on
27/07/2018. However, it is a matter of record that, he has already sent
demand notice on 13/07/2018 and same was replied by the accused.
Therefore, rejoinder sent on 27/07/2018 cannot be termed as statutory
demand notice sent on behalf of complainant. In result, point nos. 2 to
5 are answered in the affirmative.
AS TO POINT NO. 6
43] Taking into consideration answer of points Nos. 1, it becomes
clear that, the complainant has failed to prove that disputed cheques
were issued by the accused in her favour for discharging legally
enforceable liability. Therefore, accused are entitled for acquittal. In
result, I pass following order:
ORDER
1] Accused No. 1. Sodhi Builders, accused no.2 Kartar Sodhi,
and accused no. 3. Kamaljeet Sodhi partners of accused no. 1 are
hereby acquitted vide Section 255(1) of Criminal Procedure code
for an offence punishable under Section 138 r/w. Section 141 of
the Negotiable Instruments Act.
2] Bail bonds of accused stands canceled.
3] Accused No. 2 and 3 shall execute P.R. Bond of Rs. 15,000/
each, 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 437 (A) of the Code of Criminal Procedure.
-- 30 of 31 --
31 C. C. No. 3062/SS/2018
Said bail bonds shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Sd/
Mumbai (K. G. Sawant)
Dt. 12/01/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 12/01/2024
Typed On : 12/01/2024
Signed On : 12/01/2024
-- 31 of 31 --