Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 3343/SS/2018
Filed on : 27/08/2018
Registered on : 27/08/2018
Decided on : 11/01/2024
Duration : 05Y. 04M. 14D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 3343/SS/2018
CNR: MHMM190087532018
Exh. No.
Green Field Rocks End CoOp.
Housing Society Ltd. (Registered)
J. V. Link Road, Opp. Oberoi International
School, Andheri (E), Mumbai 400093.
Through Authorized representative
Mr. Anil Nana Jadhav,
aged about – 41 years, Occu : Manager of GFRE CHSL.
Mumbai 400093. …Complainant
Versus
1] Mr. Sachin Sawant.
Age : Major, Occu : Business
Indian Inhabitant,
Manisha Enterprises, Shop No. 3,
Prathmesh Leela CHS Ltd.,
New MBH Colony, Borivali (W),
Mumbai – 400092.
2] M/s. Manisha Enterprises,
Proprietorship, Shop No. 3,
Prathmesh Leela CHS Ltd.
New MBH Colony, Borivali (W),
Mumbai. 400092 ...Accused
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2 C. C. No. 3343/SS/2018
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Rajesh Dubey for the complainant
Advocate Mr. Asif Vora/ Mr. Narendra Sankpal for accused.
JUDGMENT	JUDGMENT
(Delivered on 11/01/2024)
Accused is 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] Complainant is a cooperative housing society, registered
under Maharashtra Cooperative Societies Act 1960 and filed this
complaint through its representative Mr. Anil Jadhav, who is a Manager
of complainant society. Complainant society had allotted contracts of
repairs of terrace to Manisha Enterprises, through its proprietor Mr.
Sachin Sawant. Accused had agreed to purchase extra material i.e.
140 drums of Euclid chemicals remained after completion of repairing
work of complainant society and promised to make the payment after 6
months. Accordingly, to discharge his liability he issued undated
cheque, bearing no. 000831, drawn on his account maintained with
Apana Sahakari Bank, Charkop branch, Mumbai for an amount of Rs.
10,82,900/. Vide his letter dated 17/12/2017 he had admitted his
liability and given implied consent, to the complainant to present said
cheque for clearance after six months.
3] As per instruction of accused, complainant put the date on the
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3 C. C. No. 3343/SS/2018
said cheque as a 21/06/2018 and presented it for clearance on
26/06/2018, with its banker namely Punjab and Maharashtra bank,
Andheri branch, Mumbai. However, vide memo dated 27/06/2018,
said cheque returned unpaid for a reason Payment stopped by drawer”.
4] After dishonoure of cheque, complainant issued statutory
demand notice to accused on 17/07/2018 by RPAD, calling upon
accused to pay the cheque amount, within stipulated time. Notice was
returned back with remark “Left”. Thereafter, accused personally
collected notice from the office of complainant on 27/07/2018 and
acknowledged it. However, he did not pay cheque amount within 15
days from the date of receipt of notice. 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 27/08/2018.
5] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which accused
pleaded not guilty and opt for trial.
6] In order to prove guilt of accused, complainant examined its
representative Mr. Anil Jadhav (C.W. 1) by filing himself affidavit in
lieu of examinationinchief at Exh. 22, vide section 145 of the
Negotiable Instrument Act. He also got examined Bank witness
Vaishanvi Nalawade (C.W. 2) at Exh. 37. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
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Description of documents Exh. No.
Certified copy of minutes of meetings dated
19/08/2018
Exh. 27
Verified copy of minute book Exh. 28
Work order dated 25/03/2017 Exh. 29
Letter dated 17/12/2017 Exh. 30
Disputed original cheque Exh. 31
Cheque returned memo ArticleA
Office copy of notice Exh. 32
Postal receipts Exh. 33
Returned envelope Exh. 34
Notice sent through mail along with
certificate u/s. 65 (B) of Evidence Act.
Exh. 35
7] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 48, wherein accused
has taken defence of falsely implication. Accused in support of his
defence accused examined himself at Exh. 54.
8] Complainant has filed his written notes of argument at Exh. 67
and accused at Exh. 65.
9] Heard Ld. Advocate for both parties at length. Perused written
notes of argument. 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
affirmative
2. Does complainant prove that cheques were
returned unpaid for reason “Payment
stopped by drawer”?
…. In the
affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
…. In the
affirmative
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
.. Accused is
convicted.
REASONS
Admitted/undisputed fact
10] Before going further it is necessary to mention
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admitted/undisputed facts of this case.
Admittedly disputed cheque has been drawn from the
account of Manish Enterprises, of which accused Sachin
Sawant is the proprietor and it bears his signature.
AS TO POINT NO. 1
11] The accused is roped in the offence punishable u/s. 138 of
the N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
 The payee or the holder in due course of the cheque makes a
demand for the payment of said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of
the receipt of the information by him from the bank regarding
dishonor of the cheque as unpaid.
 The drawer of the said cheque fails to make payment of said
amount of money to the payee or holder in due course of the
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.
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 The drawer of the said cheque failed to rebut the presumption u/s.
118 and 139 of the N.I. Act.
12] Before going further, it is necessary to mention here that, as per
Section 139 of N.I. Act, there is a presumption in favour of holder of
cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
d) as to time of transfer . that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements. that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
f) as to stamp. that a lost promissory note, bill of exchange or
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:
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Provided that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof, by
means of an offence or fraud, or has been obtained from the
maker or acceptor thereof by means of an offence or fraud, or
for unlawful consideration, the burden of proving that the
holder is a holder in due course lies upon him.
Section 139. Presumption in favour of holder. It shall be
presumed, unless the contrary is proved, that the holder of a
cheque received the cheque, of the nature referred to in Section
138, for the discharge, in whole or in part, of any debt or other
liability.
13] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
Section 139 of the said act plays significant role. In view of express
provision of section 139 of N.I. Act a presumption shall be drawn that
the holder of cheque, received the cheque, of the nature referred to in
Section 138 for the discharge of any debt or other liability unless
contrary is proved. Thus, it gives power to court to presume unless
contrary is proved that the holder of cheque received the cheque for
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
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shall regard such fact as a proved unless and until it is disproved. Thus,
the burden of proof as to cheque has not been issued as a legal debt or
liability is always on accused and it is for him to rebut said
presumption. A useful guidance on the said point can be taken from the
verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
14] Ld. Advocate for accused in support of his argument relied upon
judgment passed by Hon'ble Bombay High Court in the case of Ashish
Shah V/s. Sheth Developers Pvt. Ltd., 2011 (3) Bombay C.R. (Cri.)
430 has observed as under:
6. Document no.9 is the office copy of the statutory notice dated 18.2.2009
sent by the complainant to the accused persons demanding the payment of the
cheque amount after the cheque was returned dishonoured. It is material to 6 WP
4011.sxw note that this very notice was replied by the accused persons on 6.3.2009
and that original reply is the document No.12 in the said list. In fact, by the said
reply the accused admitted that the notice dated 18.2.2009 was received by them
and this is further corroborated by the two original registered A.D. Cards showing
that that the said notice was received by the accused persons. Those two registered
A.D. cards are collectively document No.11 in the said list. Naturally, the original
notices issued by the complainant and received by the accused persons must be in
possession of the accused persons.
7. Section 65 of the Evidence Act provides that secondary evidence may be given of
the existence, condition or contents of the document when the original is shown or
appears to be in possession or power of the person against whom the document is
sought to be proved. In the present case, original notice appears to be in the
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possession and power of the accused persons and therefore secondary evidence of
the said notice may be given to prove existence, condition and contents of the said
document by the complainant. Sec. 65 further requires that secondary evidence of
such document can be led when after the notice mentioned in Sec. 66 such person
does not produce the same. The learned Counsel for the complainant/respondent
pointed out that in the affidavit in evidence filed by Sharad N.Doshi, a detailed
mention was made about the issuance of statutory 7 WP4011.sxw notice dated
18.2.2009 to the accused persons and he also stated that said notices were received
by the accused persons. In the same para, he also stated "I hereby call upon the
accused to produce before this Hon'be Court the original of the demand notice
received by them." He also stated that he was producing and tendering in evidence
the office copy of the same demand notice. Mr. Desai, learned Senior Counsel,
vehemently contended that no specific form of the notice to be issued under Sec.65
or Sec.66 is prescribed. According to him, when the affidavit in evidence was
submitted by the witness of the complainant and in that affidavit, the accused were
called upon to produce the original notices which are in their possession and power
and which are sought to be proved by the secondary evidence, it was sufficient notice
to produce the original.
10. Document No.2 is the original power of attorney tendered in evidence along with
affidavit of evidence. The said power of attorney appears to have been 10 WP40
11.sxw executed on behalf of the complainant company by its director Ashwin Sheth.
The affidavit appears to have been sworn in before and has been notarized by the
Notary Public. Sec.85 of the Evidence Act provides that the Court shall presume that
every document purporting to be a power of attorney and to have been executed
before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian
Counsel or Vice Counsel or representative of the Central Government, was so
executed and authenticated. Sec. 4 of the Evidence Act provides that whenever it is
directed by the Evidence Act that the Court shall presume a fact, as it shall regard
such fact as proved unless and until it is disproved. In view of Sec. 85 read with Sec.
4 of the Evidence Act, the power of attorney purporting to have been executed and
authenticated before the Notary Public shall be presumed to have been executed and
so authenticated unless and until it is disproved. Therefore, the burden lies on the
accused to establish that the said power of attorney was not duly executed and
authenticated by the person by whom it purports to have been executed. In view of
this legal position, no objection could be taken to the admission and exhibition of the
original power of attorney.
11. Next are the document Nos. 4 and 5. Document at Sr. No.4 are the original
letters dated 30.1.2009 and 6.2.2009 sent by the accused Nos. 1 and 2 and 11 WP
4011.sxw addressed to the complainant. Both these documents purport to have been
signed by the accused Nos. 1 and 2. These letters were received by the complainant
first letter at Sr.No.4 does not bear the date of sending. However, it purports to have
been received on 30.1.2009 by Ashwin Sheth, the Managing Director of the
complainant company. The letter was addressed to him. By this letter, the accused
persons admitted to have received amount of Rs.25 crore on 25.2.2008 vide cheque
No.820140 drawn on ICICI Bank. In the second para, it was stated that as the
negotiation in respect of the property did not materialize, both the accused had
handed over a cheque of Rs.25 crore dated 7.1.2009 drawn on Indian Overseas Bank
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to the complainant for repayment of the said amount. In the last para, they requested
to deposit the said cheque on 5.2.2009. The document No.5 is the original letter
dated 6.2.2009. It was issued in continuation of the earlier letter whereby the
accused persons agreed to pay to the complainant interest at 18% per annum on the
amount of Rs.25 crore till repayment. Both these original letters are on the letterhead
of accused No.1 Ashvin C. Shah to the petitioner and both these letters purport to
have been signed by both the accused persons. It is to be noted that before these
letters were issued, the accused No.1 had issued a cheque dated 7.1.2009 in favour
of the complainant and that original cheque is admitted. As stated earlier, no serious
objection is taken to admission and execution of that cheque in evidence. The above
refererd two letters purporting to have been sent by 12 WP4011.sxw the accused
persons and addressed to the Managing Director of the complainant were received by
the Managing Director. Not only this, in response to the statutory notice dated
18.2.2009, the accused had sent the reply dated 6.3.2009.
The original reply of accused dated 6.3.2009 is at Sr.No.12. Under Sec. 47 of the
Indian Evidence Act, when the Court has to form an opinion as to person by whom
any document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed, that it was
or was not written or signed by that person, is a relevant fact.
Explanation to Sec. 47 provides that a person is said to be acquainted with the
handwriting of another person when he has seen that person write or when he has
received documents purporting to be written by that person in answer to the
document written by himself or under his authority and addressed to that person or
when in the ordinary course of business the document purporting to be written by
that person have been habitualy submitted to him. In the present case, the two letters
referred above, were received in the office of the complainant in the ordinary course
of business and in respect of the transaction which had taken place between the
complainant and the accused. The complainant's witness Sharad Doshi was the
Executive Assistant to the ChairmancumManaging Director of the complainant
company. In this capacity, he was expected to have received and seen the letters
received from the accused persons by his boss ie.
13 WP4011.sxw Managing Director. In paras 11 and 12 of his affidavit in evidence,
witness Sharad Doshi specifically stated that the said letters were duly signed by both
the accused Nos. 1 and 2 and he knows the signature of the accused Nos. 1 and 2
and could identify the same. In view of this statement on affidavit, and the provisions
of Explanation to Sec. 47, the original letters purporting to have been signed by and
received from the accused Nos. 1 and 2 could be admitted in evidence.
12. The learned Counsel for the petitioner vehemently contended that the document
could not be admitted in evidence unless author of the same was examined before
the Court and in support of this contention, he relied upon Vishwanath Rai vs.
Sachhidamand Singh AIR 1971 SC 1949. In that case, witness of one party deposed
that a letter written by one S to him had been received by him. The Supreme Court
held that burden lies on other side to prove its allegation that the letter was not
written by S or that it was written in collusion with S and the witness. However, the
Supreme Court also held that the letter is relevant and admissible to the extent of the
fact that S wrote such a letter to the witness with its contents. However, correctness
of the contents of the letter would be proved only by examining S as a witness
because he was the author. In the present case, the author and signatories of the
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above referred two letters are accused Nos. 1 and 2. The letters purporting to have
been signed and sent by them 14 WP4011.sxw were received by the Managing
Director of the complainant and this fact is deposed to by witness Sharad Doshi. In
view of this, if the accused persons allege that the said letters were not signed and
sent by the accused persons, burden lies on them to prove the same. The contention
of the learned Counsel that the contents of this document and the truth for the same
cannot be proved without examining the author of the same is against the basic
principles of criminal jurisprudence, because prosecution can never ask the accused
to enter into witness box as a witness of prosecution. In fact, the accused cannot be
called in the witness box even as defence witness unless he makes a written request
for the same. Not only this, even in the statement under Sec.313 Cr.P.C. wherein the
incriminating circumstance are required to be put to the accused to enable him to
explain the same, the accused is not bound to answer those questions, though the
Court may draw adverse inference against him if he keeps quiet. In such
circumstances, to suggest that the document written by and signed by the accused
could not be proved without examining the accused as witness of the prosecution is
against the settled position of law and therefore this contention of the learned
Counsel for the petitioner is liable to be rejected.
13. In Ramji Dayawala and Sons Pvt.Ltd. vs. Invest Import 1980DGLS (Soft.) 436,
AIR 1981 SC 2085, the Supreme Court observed thus in 15 WP4011.sxw para 16 :
"Undoubtedly, mere proof of the handwriting of a document would not
tantamount to proof of all the contents or the facts stated in the
document. If the truth of the facts stated in a document is in issue mere
proof of the handwriting and execution of the document would not
furnish evidence of the truth of the facts or contents of the document.
The truth or otherwise of the facts or contents so stated would have to be
proved ig by admissible evidence, i.e. by he evidence of those persons
who can vouchsafe for the truth of the facts in issue."
14. In view of this, it is clear that mere proof of handwriting of a document would
not be tantamount to proof of all the contents or the facts stated in the document. If
the truth of the facts stated in a document is in issue, the same would have to be
proved by admissible evidence. In the present case, the above referred two letters
purport to have been signed and sent by the accused persons and therefore the
documents can be admitted in evidence. About the truth and otherwise if any doubt
arises, it can be proved independently and because these letters were authored and
signed by the accused, the 16 WP4011.sxw burden may lie on them to establish the
circumstances in which those letters were written, if the contents are not correct. The
same thing would be applicable to the original reply dated 6.3.2009 sent by the
accused in response to the statutory notice dated 18.2.2009.
15. Next comes the document No.1 the certified true copy of the resolution dated
16.2.2009, whereby the complainant company had allegedly resolved to give consent
of the Board of Directors to execute power of attorney in favour of Ashwin Sheth,
Managing Director and/or Sharad Doshi, Executive Assistant to the Managing
Director to institute or defend any suit or criminal proceedings. The learned trial
Court observed in the impugned order that there is no clearcut provision about
issuance of certified copy of extract of minutes book but if subsec. (2) of Section 196
of the Companies Act is read, it may be stated that certified copy of the minutes can
be given. The learned trial Court observed that the witnes Sharad Doshi in his
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affidavit had deposed about the said document and thereby he has proved the
genuineness of the document. Under Section 195 of the Companies Act, where
minutes of the proceedings of any general meeting of the company have been kept in
accordance with the 17 WP4011.sxw provisions of section 193, then, until the
contrary is proved, the meeting shall be deemed to have been duly called and held,
and all proceedings thereat to have duly taken place. Section 194 of the Companies
Act provides that the minutes of meetings kept in accordance with the provisions of
section 193 shall be evidence of the proceedings recorded therein. However, no
provision in the Companies Act is brought to my notice which provides that the
certified copy or extract of the minutes would be admissible in evidence without
proof of the original. Section 65(f) of the Evidence Act provides that secondary
evidence may be given of the existence, condition and contents of the document
when the original is the document of which a certified copy is permitted by the
Evidence Act or by any other law in force in India to be given in evidence. As no
provision from the Companies Act is brought to my notice under which the certified
copy of the minutes of the meetings of the board of directors is admissible in
evidence without proof of the original, it must be said that the copy of the minutes
cannot be admitted in evidence directly unless the original is proved or the copy is
admitted by opposite party. Therefore, even though that document is given exhibit
number, it cannot be treated to have been proved, unless the 18 WP4011.sxw
complainant leads appropriate evidence to prove the minutes.
16. For the aforesaid reasons, the petition stands dismissed, except in respect of the
document No.1 in the index filed with the affidavit in evidence of Sharad Doshi. The
complainant shall be at liberty to lead evidence to prove the original of that
document.
15] Secondly he relied upon judgment passed by Hon'ble Bombay
High Court decided in the case of Kishore Shankarsingapurkar V/s.
State of Maharashtra 2003 C.J. (BOM) 522, wherein Hon'ble High
Court has observed as under:
“12. Every prosecution, which is the result of the cognizance taken of the
complaint results in hardship, agony and expenditure to the indicated
person. He is required to appear before the Court and for that in normal
and in major cases, he has to engage a lawyer which would make him to
spend a significant amount of money. For appearing before the Court he
has to withdraw himself from his normal occupation, which happens to be
a source of his livelihood. Therefore, the complainant who does not place
all the material facts before the Court and seeks an order from the Court,
the cognizance of his complaint has to suffer a failure, so far as his cause
is concerned. One who does not come with clean hands has to suffer. 4.
When the Court of competent jurisdiction directs a person to return the
cheques to drawer, he has to obey the said order, if that was not
challenged by him in higher forums. In such case or cases he does not
have any right to present those cheques for encashment. If he presents
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such cheques in violation of such order, then he cannot take advantage of
dishonouring of such cheques for filing a complaint against such drawer
in a criminal Court. Exactly the same situation has arisen so for as the
present case is concerned. There is no point in allowing the petitioner to
go to said Court and to make a prayer to that Court for recalling the said
order because, nearly 5 years have elapsed. Therefore, this Court passes
the order of quashing the said order, which has been passed by the
Metropolitan Magistrate, 37th Esplanade Court, Mumbai by which he has
taken cognizance of the complaint, which has been filed by respondent
No. 2 and has issued the process against the petitioner. The said
prosecution thus, stands quashed. The result is that this petition is
allowed. The petitioner need not appear before the said Court. ”
16] He also relied upon judgment passed by Gurudas Budho Velip
v/s. Premanand Anvekar, 2010 (3) BOM C.R. (Cri.) 59 wherein
Hon'ble High Court has observed as under:
5. Obviously, the statutory demand notice had to be sent within 15 days,
in terms of Section 138(b) of the Act, from the date of the receipt of
information by the Complainant from the Bank regarding the return of the
cheque unpaid, which obviously the Complainant did not. There is no
evidence to show as to when the notice dated 551999 was posted but the
reply of the accused showed that it was received by the accused on 285
1999. The Complainant was given an opportunity to produce the A.D Card
of the notice sent, but the Complainant did not produce the same as not
traceable. Adverse inference has got to be drawn against the Complainant
for non production of the said A.D Card. It was also suggested to him that
the notice was sent on 2251999 and to that the Complainant stated that
he did not remember. The accused having failed to prove that the notice
was sent within 15 days from 351999, the benefit that Section 138(b)
was not complied with has to go to the accused. This Court in the case of
Goa Antibiotics & Pharmaceuticals Ltd. v. R. K. Chawda &
another(2009(2) GLR 63) has held that a complaint could be dismissed
because the statutory notice was not sent within 15 days of the receipt of
the information from the Bank that the cheque was dishonoured, as
required by Clause (b) of Section 138 of the Act.
6. Section 138 of the Act incorporates the principle of strict liability and
being a penal provision it has got to be construed strictly. In N. G.
Narayanaswamy v. M/s. Vijayanand Roadlines Ltd.(2001 Cri.L.J 211) the
criminal proceedings were quashed for non compliance of Section 138(b)
of the Act i.e for not having issued to the drawer of the cheque the notice
within 15 days of the receipt of information by him from the Bank
regarding the return of cheque as unpaid, and, it was further held that the
complaint did not strictly constitute an offence under Section 138 of the
Act. In Munoth Investments Ltd. v. Puttukola Properties Ltd. and
another((2001) 6 SCC 582) the need to send a notice within 15 days was
recognized and it was stated that the limitation period for issuing notice
of demand commences from the receipt of the information regarding the
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15 C. C. No. 3343/SS/2018
return of the cheque as unpaid.
7. The learned trial Court has proceeded to consider the point of
limitation in terms of Clause (c) of Section 138 of the Act and the learned
Additional Sessions Judge has considered the point of limitation in terms
of Clause (b) of Section 142 r/w Section 138 of the Act. Both the Courts
below have not considered the issue of limitation in terms of Clause (b) of
Section 138 of the Act. The learned Additional Sessions Judge has also
proceeded on the basis that the Complainant had 30 days to send the
notice without considering that 15 days to 30 days were substituted only
in the year 2002, and enforced from 622003. That the amendment is
prospective has been decided by the Apex Court in Anil Kumar
Goel(2009(1) SSC(Cri) 209).
8. Considering that there was non compliance of Clause (b) of Section
138 of the Act, the accused could not have been convicted. Revision
therefore succeeds. The Judgments of the Courts below are hereby set
aside, and the accused is hereby acquitted under Section 138 of the Act.
17] On the other hand, Ld. Advocate for complainant in support of
his argument, relied upon Judgment passed by Hon'ble Supreme court
in the case of Dashrathbhai Trikambhai Patel V/s. Hitesh
Mahendrabhai Patel & Anr., decided in criminal appeal no. 1497 of
2022 wherein para no. 12 and 16 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
-- 15 of 28 --
16 C. C. No. 3343/SS/2018
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. ”
18] He also relied upon judgment passed by Hon'ble Supreme Court
in the case of T. P. Murugan V/s. Bojan, decided in criminal appeal
950951 of 2018 wherein para no. 09 Hon'ble Supreme Court has
observed as under:
whelming evidence to establish that the two cheques were issued towards
the discharge of an existing liability and legally enforceable debt. The
respondent having admitted that the cheques and Pronote were signed by
him, the presumption under S.139 would operate. The respondent failed to
rebut the presumption by adducing any cogent or credible evidence.
Hence, his defence is rejected.
19] He also relied upon judgment passed by Hon'ble Supreme Court
in the case of Rangappa V/s. Srimohan, wherein Hon'ble Supreme
Court has observed as under:
“The purpose of a postdated cheque is to provide some accommodation
to the drawer of the cheque. Therefore, it is all the more necessary that
the drawer of the cheque should not be allowed to abuse the
accommodation given to him by a creditor by way of acceptance of a post
dated cheque. In view of Section 139, it has to be presumed that a cheque
is issued in discharge of any debt or other liability. The presumption can
be rebutted by adducing evidence and the burden of proof is on the
person who wants to rebut the presumption. This presumption coupled
with the object of Chapter XVII of the Act leads to the conclusion that by
countermanding payment of a postdated cheque, a party should not be
allowed to get away from the penal provision of Section 138. A contrary
view would render S. 138 a dead letter and will provide a handle to
persons trying to avoid payment under legal obligations undertaken by
them through their own acts which in other words can be said to be
taking advantage of one's own wrong. …
"... The authority shows that even when the cheque is dishonoured by
reason of stop payment instruction, by virtue of Section 139 the Court has
to presume that the cheque was received by the holder for the discharge
in whole or in part, of any debt or liability. Of course this is a rebuttable
presumption. The accused can thus show that the `stop payment'
instructions were not issued because of insufficiency or paucity of funds.
If the accused shows that in his account there was sufficient funds to clear
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17 C. C. No. 3343/SS/2018
the amount of the cheque at the time of presentation of the cheque for
encashment at the drawer bank and that the stop payment notice had
been issued because of other valid causes including that there was no
existing debt or liability at the time of presentation of cheque for
encashment, then offence under Section 138 would not be made out. The
important thing is that the burden of so proving would be on the accused.
..."
Coming back to the facts in the present case, we are in agreement with
the High Court's view that the accused did not raise a probable defence.
As noted earlier, the defence of the loss of a blank cheque was taken up
belatedly and the accused had mentioned a different date in the `stop
payment' instructions to his bank. Furthermore, the instructions to `stop
payment' had not even mentioned that the cheque had been lost. A
perusal of the trial record also shows that the accused appeared to be
aware of the fact that the cheque was with the complainant. Furthermore,
the very fact that the accused had failed to reply to the statutory notice
under Section 138 of the Act leads to the inference that there was merit in
the complainant's version. Apart from not raising a probable defence, the
appellantaccused was not able to contest the existence of a legally
enforceable debt or liability. The fact that the accused had made regular
payments to the complainant in relation to the construction of his house
does not preclude the possibility of the complainant having spent his own
money for the same purpose. As per the record of the case, there was a
slight discrepancy in the complainant's version, in so far as it was not
clear whether the accused had asked for a hand loan to meet the
constructionrelated expenses or whether the complainant had incurred
the said expenditure over a period of time. Either way, the complaint
discloses the prima facie existence of a legally enforceable debt or liability
since the complainant has maintained that his money was used for the
constructionexpenses. Since the accused did admit that the signature on
the cheque was his, the statutory presumption comes into play and the
same has not been rebutted even with regard to the materials submitted
by the complainant."
20] He further relied upon judgment passed by Hon'ble Supreme
Court in the case of Electronics Trade and Technology development
Corpn., Ltd. v/s. Indian Technologist and Engineers decided in
criminal appeal no. 124/1996, wherein Hon'ble Supreme Court has
observed as under:
“Shri Nageswara Rao, learned counsel appearing for the respondents,
contended that stoppage of payment due to instructions does not amount to
an offence under Section 138 and that, therefore, the ingredients in Section
138 have not been satisfied. We find no force in the contention. The object
of bringing Section 138 on statute appears to be to inculcate faith in the
efficacy of banking operations and credibility in transacting business on
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18 C. C. No. 3343/SS/2018
negotiable instruments. Despite civil remedy, Section 138 intended to
prevent dishonesty on the part of the drawer of negotiable instrument to
draw a cheque without sufficient funds in his account main tained by him
in a bank and induce the payee or holder in due course to act upon it.
Section 338 draws presumption that one commits the offence if he issues
the cheque dishonestly. It is seen that once the cheque has been drawn and
issued to the payee and the payee has presented the cheque and thereafter,
if any instructions are issued to the Bank for nonpayment and the cheque
is returned to the payee with such an endorsement, it amounts to dishonour
of cheque and it comes within the meaning of Section 138. Suppose after
the cheque is issued to the payee or to the holder in due course and before
it is presented for encashment, notice is issued to him not to present the
same for encashment and yet the payee or holder in due course presents the
cheque to the Bank for payment and when it is returned on instructions,
Section 138 does not get attracted. Under these circumstances, since the
accused has not made the payment within 15 days from the date of the
receipt of the notice issued by the payee or the holder in due course, the
dishonest intention is inferable from those facts. Accordingly, the
ingredients as contained in Section 138 have been prima facie made out in
the complaint. The High Court, therefore, was wholly incorrect in its
conclusion that the ingredients have not been made out in the complaint.
The orders of the High Court quashing the complaints are illegal. They are
accordingly set aside and the trial Court is directed to disposed of the
matters as expeditiously as possible. It is made clear that we do not intend
to express any opinion on merits.”
21] And lastly he relied upon judgment passed by Hon'ble Kerala
High Court in the case of P.K. Rajan V/s. K Radhakrishnan and
others, wherein Hon'ble High Court has observed as under:
“Had there been any overwriting or correspondence correction in the
amount entered in words in Exh. P1, it could have been said that it was an
alteration of material nature as contemplated under Section 87 of the N. I.
Act when there is no corresponding correction or alteration in the amount
entered in words in Ext.P1, at any stretch of imagination, it could not have
been considered as a material alteration, it seems that the court below has
unnecessarily passed a judgment of acquittal in this case.”
22] I have gone through ratio laid down by Hon'ble High Court
and Supreme Court in all these rulings. It appears that, accused in
support of his case relied upon judgment passed by Hon’ble High Court
and Hon’ble Supreme Court, wherein issue regarding issuance of
demand notice, legally enforceable debt, proof of document etc. has
been discussed. However, in the case at hand, accused has admitted
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19 C. C. No. 3343/SS/2018
receipt of demand notice and other correspondence between the
parties. In order to prove his case, complainant examined its
representative Mr. Anil Jadhav (C.W.1) by filing his affidavit of
examinationinchief at Exh. 22, wherein he has reiterated his case from
the complaint. His evidence shows that, earlier office bearers of
complainant society had given work order to the accused on
25/03/2017 for repairing of the complainant society. His evidence
further shows that, after completion of work of the society, nearabout
140 drums of Euclid chemicals were remained unused. His evidence
further shows that, after negotiations with the committee members of
the society, accused agreed to purchase remaining chemicals and
accordingly, terms of purchase were reduced into writing on
17/12/2017. Accused issued undated cheque for an amount of Rs.
10,82,900/ on the same day and time of six months were granted to
the accused to pay the amount. His evidence further shows that, on
27/07/2018 after confirmation with accused, disputed cheque was
presented for clearance by the society, however same was returned
unpaid. In support of his oral evidence, he has produced on record
work order and writing given by the accused on 17/12/2017 as well as
some other correspondence taken between the parties.
23] Ld. Advocate for accused has conducted crossexamination
of witness at length and accused examined himself. From perusal of
crossexamination and evidence of accused, it appears that, accused has
not denied issuance of work order by the society in his favour. It also
appears that, he also admitted letter dated 17/12/2017, filed at Exh.
no. 30. He also admitted that, he has signed on this letter as a
proprietor of M/s. Manisha Enterprises.
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20 C. C. No. 3343/SS/2018
24] Accused has examined himself. It has come in the evidence
that, society had promised him to give work of repairing pertaining to
entire society and hence, he agreed to purchase the remaining chemical
of society, but as per his requirement and not the entire chemical. He
further stated that, again complainant society insisted him to purchase
entire chemical and therefore, he took that chemical and dumped the
same at his one of the site. His evidence further shows that, thereafter
management of society was changed and new secretary Dr. Rahul asked
him, as to how he received chemical of complainant society. His
evidence shows that, thereafter on 2nd or 3rd day he issued letter to the
society raising all those points and promised to return their material.
His evidence shows that, accordingly he sent entire 140 drums of
chemical to complainant society through a tempo, however, they did
not receive that chemical.
25] His evidence further shows that, he sent email to society
requesting them to receive the chemical but they did not reply to the e
mail. His evidence further shows that, again he sent chemical to the
complainant society but 2nd time also they did not received. Later on, he
issued letter to bank to stop payment of cheque which was issued for
security purpose.
26] First of all, it is necessary to note here that, accused had
purchased remaining 140 drums of chemical from the society as per
letter (Exh. 30) given by him to the society on 17/12/2017. Accused
has not denied issuance of said letter to the society and contents of it
except the contents written in handwriting. From perusal of letter at
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21 C. C. No. 3343/SS/2018
Exh. 30 it appears that, in handwriting it is mentioned in the said letter
that, PDC No. 000851 Apana Sahakari Bank Ltd. For an amount of Rs.
10,82,900/. Accused has countersigned to the handwritten portion but
in crossexamination, he denied his signature. For the sake or
argument, if I accept contention of accused that, contents written in
handwriting are not part of this letter which he had issued, then also
remaining contents of letter clearly shows that, he had agreed to
purchased 140 drums of chemical from the society. It is further
mentioned in this letter that, he would pay amount to the society after
six months, as he has to use the said material on other side as and when
required. So, said letter shows that, amount was to be paid after six
months but it doesn't show that, amount was to be paid only after use
of chemical by the accused . Admittedly, as per this letter he had
purchased chemical from the society.
27] Accused in his crossexamination admitted that, as per letter
dated 17/12/2017, he shown willingness to purchase 140 drums of
chemical from the society on condition mentioned in the said letter. He
further admitted that, he took possession of 140 drums of chemical
from the society. Admittedly, till today, he has not paid any amount to
the society against purchaase of those 140 drums of chemicle from the
society. He specifically stated that, after giving said letter to society, he
took possession of chemical.
28] Thus, above mentioned letter clearly shows that, accused had
purchased chemicals from society on condition to pay its amount after
six months. In crossexamination of complainant, suggestion was given
on the part of accused that, disputed cheque was handed over by
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22 C. C. No. 3343/SS/2018
accused to the society in the year 2017 itself. When witness denied said
fact, he was confronted with the said letter dated 17/12/2017. Thus, it
clearly shows that, during evidence of complainant accused has not
denied issuance of cheque along with letter dated 17/12/2017. It
appears that, lateron after thought in his evidence accused stated that,
cheque was not issued by him along with this letter. If accused had
purchased said chemical on some conditions and he had not purchased
entire chemical then he should have call earlier office bearers of the
society, with whom he had entered into contract. I am agreed with
argument advanced by Ld. Advocate for accused that, new office
bearers of the society had no knowledge regarding the actual contract
taken place between the parties. Complainant has not denied issuance
of email by the society to the accused dated 07/04/2018 filed at Exh.
61. In this email, they have raised question as to how accused has
purchased chemical from society since there is no written agreement
between him and society. They further stated that, all these facts
amounts suspicious transaction and therefore, requested accused to
provide necessary proof/documents to the society, so that society can
initiate legal action against the culprits. It is further stated that,
accused should fund his account with required amount before
25/04/2018, so that cheque can be encashed and matter can be closed.
29] Thus, there is a no proper agreement between complainant and
accused for purchase of said chemical, but letter dated 17/12/2017 and
admission given by the accused in his crossexamination, clearly shows
that, in view of letter dated 17/12/2017, he had shown willingness to
purchase the chemical from the society, but there is nothing to show
that, on what terms and condition, said chemical was sold out by the
-- 22 of 28 --
23 C. C. No. 3343/SS/2018
society to the accused. In fact, Mr. Jadhav (C.W.1) in his cross
examination, clearly admitted that, he doesn't have personal knowledge
about the said transaction. In such circumstances, it was for the
accused to examine office bearer of the society to show that, besides
conditions mentioned in letter dated 17/12/2017, on some other
conditions he had purchased that chemical. According to accused, he
had purchased said chemical on the condition that, society would give
entire repairing work including plumbing work of society to him,
however no document has been placed on record by the accused
showing that, he had purchased chemical from complainant society on
condition that, society would give repairing work of society to him. He
also failed to show that, he had not purchased entire chemical but he
had purchased chemical to the extent of his requirement. Accused has
produced copy of some emails on record showing that, he had
communicated to the society about his conditions but there is nothing
to show that, society had accepted these conditions. In fact, accused
took possession of entire chemical from the society and thus, all the
circumstances, clearly goes to the show that, he had purchased all 140
drums of chemicals from the society.
30] Having gone through evidence of both parties and considering
argument of both parties, it appears that, society had no any license to
sale the chemicals, so also there is nothing to show that, society had
passed resolution and by following proper procedure, remaining
chemical was sold out by the society to the accused. It has also come on
record that, the representative of society has no personal knowledge
regarding said transaction but at the same time documentary evidence
produced on record by the society i.e. letter dated 17/12/2017 and
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24 C. C. No. 3343/SS/2018
admissions given by the accused in crossexamination clearly shows
that, he had purchased chemical from the society and against that
issued disputed cheque. Interestingly, in his examinationinchief,
accused has stated that disputed cheque was handed over by him to the
complainant in November 2017. But in crossexamination of
complainant, it was suggested that, said cheque was given along with
letter dated 17/12/2017. As discussed earlier, accused has failed to
prove that cheque was given for security purpose only and he had not
purchased entire chemical from the society.
31] In crossexamination, suggestion was given to the complainant
that, as per work order, it was his duty to purchase the remaining
chemical from society, but from persual of work order at Exh 29, it
appears that, in this work order it is not mentioned that, accused would
purchase remaining chemical from society but it is mentioned that,
“balance material if any, shall be returned to M/s. Manisha Enterprises”
further on page no. 3, it is mentioned that, “The balance Chemical aftr
the contract will be the property of contractor.” Thus, work order
doesn't show that, it was the responsibility of accused to purchase the
chemical but letter dated 17/12/2017 and admission given by the
accused in his crossexamination shows that, he had purchased
chemical from the society and issued undated cheque to the society. As
discussed earlier, accused did not call previous office bearers of the
society to prove that, there were some other conditions orally decided
between the parties and as per those conditions accused were not
supposed to purchase entire chemical but he agreed to purchase the
chemical as per his requirement. At the cost of repetition, accused has
failed to prove his defence. In result, point no. 1 has answered in the
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25 C. C. No. 3343/SS/2018
affirmative.
AS TO POINT NO. 2 TO 5
32] In order to prove that, cheque was returned unpaid, complainant
got examined Mrs. Vaishnavi Nalavade – branch manager of Apana
Sahakari Bank. Her evidence shows that, disputed cheque was
presented for clearance and it was returned unpaid for reason “Payment
stopped by drawer”. In fact, accused has not denied that, said cheque
was returned unpaid for a reason Payment stopped by him. It is a
matter of record that, complainant has sent demand notice to the
accused on 21/07/2018 but same has been returned unserved with
remark “Left”.
33] Record shows that, demand notice was sent at the address of
Manisha Enterprises. Though, in crossexamination of complainant,
accused has denied service of demand notice on him but in his cross
examination, he stated that, he had replied to the demand notice,
therefore, it becomes clear that, demand notice was duly served upon
accused. Admittedly, accused has not paid cheque amount to the
society after receipt of notice. As per case of complainant, notice was
served uopn accused on 27/07/2018. Complainant has filed this
complaint on 27/08/2018 i.e. within limitation. In result, point no. 2 to
5 are answered in the affirmative.
AS TO POINT NO.6
34] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has 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
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26 C. C. No. 3343/SS/2018
them vide Section 3 to 5 of the Probation of Offenders Act, 1958.
Therefore, the accused is called upon to state on the point of sentence.
Sd/
(K. G. Sawant)
Date : 11/01/2024 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
35] I explained to accused that, he is held guilty for the
offence of the dishonor of cheque and that the N.I. Act has provided
punishment to the offence of imprisonment upto two years and fine
upto twice of the cheque amount. Thereafter, I asked the accused to
clarify her stand on the nature and quantum of the sentence, if any.
36] Upon asking on the point of sentence, accused submitted
that, he is the victim of dispute between two committees of
complainant's society. He further stated that, he tried twicely to send
back chemical to complainant society but they did not receive it. He
further stated that, just to help the society, he had given proposal to
them and finally said chemical was expired and remained unused.
Hence he prayed to take lenient view. Ld. Advocate for accused has
also prayed to take leniency view on above mentioned grounds.
37] On the other hand, Ld. Advocate Mr. Rajesh Dubey for
complainant submitted that, amount involved in this case is the amount
of society members. Hence prayed to impose maximum punishment as
per law.
38] Heard Ld. Advocate for both parties at length and perused the
case record, it appears that, it was not the responsibility of accused to
-- 26 of 28 --
27 C. C. No. 3343/SS/2018
purchase the chemical but just to help the society, he had given said
proposal. Record also shows that, no any clear agreement was executed
between the parties in relation to sale of chemical. In fact, letter dated
07/04/2018 filed at Exh. 61, shows that, present office bearer of society
was not aware on what terms and conditions, said chemical was given
to the accused. It has also come on record that , accused has tried
twicely to return that chemical to society. Admittedly, he has sent
emails to that effect to the society. However, in their reply society has
not stated anything about his proposal to receive back those material.
It has also come on record that, said chemical has gone unused and
accused has also not benefited from it. It cannot be said that, accused
with intention to cause loss to the society, got dishonoured disputed
cheque. But there appears to be serious and genuine dispute between
the society and accused. In such circumstances, I do not find this case
as a fit matter to impose sentence of imprisonment and even grant
compensation to the extent of the cheque amount. Considering peculiar
facts of this case, conduct of accused and other circumstances which
reflects from case record, I am of the view of that, following sentences
would meet the ends of justice. In result, I proceed to pass following
order:
ORDER
i. The accused No. 1. Sachin Sawant Proprietor of accused no. 2
Manisha Enterprises is hereby convicted for the offence punishable
under section 138 of the Negotiable Instrument Act, 1881 vide section
255(2) of the Code of Criminal Procedure, 1973.
ii. Accused No. 1 is sentenced to pay fine of Rs. 5,00,000/ and in
default of payment of fine, he shall suffer simple imprisonment for the
-- 27 of 28 --
28 C. C. No. 3343/SS/2018
period of Six Months.
iii. After recovery of fine amount of Rs. 5,00,000/, same shall be
paid to the complainant society by way of compensation Vide Section
357(1) of the Code of Criminal Procedure.
iv. The amount of fine realized from the accused, shall be paid to the
complainant, subject to expiry of the appeal period or the orders of
Honourable Appellate Court (if any).
v. Accused No. 1 to surrender his bail bonds.
vi. No question of setoff under section 428 of the Code of Criminal
Procedure, 1973, as the accused has not spent any period in the custody
during the trial.
vii. The copy of this Judgment be provided free of cost to the
accused, immediately after it is prepared, in view of section 363(1) of
the Code of Criminal Procedure, 1973.
viii. Dictated and pronounced in open court.
Sd/
Mumbai (K. G. Sawant)
Dt. 11/01/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 11/01/2024
Typed On : 11/01/2024
Signed On : 11/01/2024
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