Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 3579/SS/2018
CNR No. : MHMM19-009319-2018
Received On : 06/09/2018
Registered On : 06/09/2018
Decided On : 14/07/2025
Duration :Y-06, M-10, D-08
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 3579/SS/2018 Exh. 44
M/s. Akshar Plastics,
a partnership firm carrying on
their business in plastic raw
materials having office at A/34,
Nandkishore Indl.Esate, off.
Mahakali Caves Road, Near Paper Box,
Andheri (E), Mumbai – 400 093
Through their partner Kamlesh K. Zatakia,
age : 61 years. -- Complainant
Versus
1. M/s. Guru Nanak Thermoplast Industries
A Partnership firm having address
plot no. 752/1 & 2, Sidhvan Udyog Bhavan,
Unit No. 4, Kalaria, Somnath,
Nani Daman – 396 210.
2. Datomder Somgj Ahluwalia (Process not issued)
3. Parminder Singh Ahluwalia
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Partner of M/s. Guru Nanak Thermoplast Industries
11-27, New Akhand Jyot CHS, Manish Nagar, 4 Bunglow,
Near Gurudwara, Andheri (W), Mumbai. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Adv. Mr. J. R.Mishra for the complainant.
Adv. Mr. Amit Shirsath for the accused.
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JUDGMENT
(Delivered on 14th of July 2025)
The accused are facing trial for an offence punishable
under Section 138 of the Negotiable Instruments Act (Hereinafter
referred as “the Act” for short) for dishonor of a cheque for an amount
of Rs. 2,84,380/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, complainant is the
partner of M/s. Akshar Plastic and carrying on their business in plastic
raw material. Accused no. 1 is a partnership firm and accused no. 2
and 3 are its partners. They are looking after day-to-day activities and
responsible for the business of accused no. 1. Accused no. 3 is the
signatory of the cheque. The complainant has delivered plastic raw
material to the accused.
03. Complainant has further submitted that, towards the
discharge of the debt and liability for the price of plastic raw material
sold and delivered to the accused, the accused issued a cheque bearing
no. 032977 dated 14/04/2018 of Rs. 2,84,380/- drawn on Bank of
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India, Khodadad Circle branch, Mumbai in favour of complainant.
Thereafter, the complainant deposited the above said cheque for
encashment in his bank namely HDFC Bank, Vishal Hall branch,
Andheri (E), Mumbai. The same was returned unpaid from drawee
bank with endorsement 'Exceeds arrangement’. Accordingly, the HDFC
Bank issued memo dated 12/07/2018. Thereafter, he contacted the
accused and requested to pay cheque amount but the accused
intentionally not paid said amount. Thereafter, he issued demand notice
dated 17/07/2018 to accused. The notice was duly served on the
accused but accused failed to pay cheque amount within stipulated
period. Hence, the complainant constrained to file present complaint.
04. After recording statement of the complainant and perusing
all documents produced on record, process came to be issued against
the accused for the above offence. In response to summons, the accused
appeared. Particulars of offence recorded below Exh. 14 which were
read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
05. Accused has conducted the cross-examination of the
complainant in which he has raised following defences:-
a) The complainant is not duly authorized to file the
present complaint and to depose in the case.
b) The complainant has not proved the transaction.
c) The complainant has not proved the delivery of
goods to the accused.
d) The complainant has misused the cheque which was
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issued for another invoice number.
e) The accused is not liable to pay the cheque amount.
06. The statement of accused under Section 313 of the Code of
Criminal Procedure, 1972 (in short 'the Code') was recorded vide Exh.
35. In his statement U/s. 313 of the Code, accused has submitted that,
he had not ordered goods from the complainant and he has not
supplied it to him. The cheque was lying with the complainant since
long and he has misused the cheque.
07. Heard Ld. Advocate Shri. J. R. Mishra for complainant and
Ld. Advocate Shri. Amit Shirsath for accused and also perused and
considered the written notes of argument.
08. From perusal of complaint, record and defence of the
accused, following points arise for my determination. I have recorded
my finding and reasons thereon as under:
Sr. No. Points Findings.
1. Does the complainant prove that cheque No.
032977 (Exh. 24) was drawn by accused for
legally recoverable debt or other liability?
Yes.
2.
Does the complainant prove that the said
cheque returned unpaid for the reason
“Exceeds arrangements”?
Yes.
3.
Does the complainant prove that he had issued
demand notice to the accused within
limitation demanding cheque amount?
Yes.
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4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under Section 138 of the
Negotiable Instruments Act ?
Yes.
6. What order? The accused
are convicted.
09. In order to prove the case, the complainant has filed
evidence affidavit of Kamlesh K. Zatakia as a (C.W.1) at Exh. 20. The
complainant also placed his reliance upon following documents:
Description of documents Exhibit numbers
GST certificate along with certificate U/s. 65
(B) of evidence Act.
Exh. 22
E-mail of purchase order Article -A
Tax invoice Exh. 23
Xerox copy of lorry receipt Article-B
Original cheque Exh. 24
Cheque returned memo Exh. 25
Office copy of demand notice Exh. 26
Postal receipt Exh. 27
Track report Article-C
Accused has examined one witness namely Swapnil Pramod Patil
as a (D.W.1) at Exh. 37.
REASONS
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the complainant has filed evidence affidavit of Kamlesh K.
Zatakia as a (C.W.1) at Exh. 20. As per his evidence, It is averred by
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the complainant that, he is the partner of M/s. Akshar Plastic and
carrying on their business in plastic raw material. Accused no. 1 is a
partnership firm and accused no. 2 and 3 are its partners. They are
looking after day-to-day activities and responsible for the business of
accused no. 1. Accused no. 3 is the signatory of the cheque. He has
delivered plastic raw material to the accused.
11. It has further came in his evidence that, towards the
discharge of the debt and liability for the price of plastic raw material
sold and delivered to the accused, the accused issued a cheque bearing
no. 032977 dated 14/04/2018 of Rs. 2,84,380/- drawn on Bank of
India, Khodadad Circle branch, Mumbai in his favour. Thereafter, the
complainant deposited the above said cheque for encashment in his
bank namely HDFC Bank, Vishal Hall branch, Andheri (E), Mumbai. The
same was returned unpaid from drawee bank with endorsement
'Exceeds arrangement’.
12. The accused has conducted the cross-examination of the
complainant. In his cross-examination, the accused has raised defences
that,
a) The complainant is not duly authorized to file the
present complaint and to depose in the case.
b) The complainant has not proved the transaction.
c) The complainant has not proved the delivery of
goods to the accused.
d) The complainant has misused the cheque which was
issued for another invoice number.
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e) The accused is not liable to pay the cheque amount.
13. Before adverting towards of the merit of case, it is
necessary to deal with some legal principle regarding presumptions
contemplated in Section 118 and 139 of the Act and standards of proof
for its establishment or also for rebuttal. The Hon'ble Supreme Court of
India in
T. Vasanta Kumar v/s. Vijay Kumar (2015) 8 SCC 378 has held
that, “the presumption mandated by Section 139 includes a
presumption that there exists a legally enforceable debt or liability. This
is of course in the nature of a rebuttable presumption and it is open to
the accused to raise a defence wherein the existence of a legally
enforceable debt or liability can be contested. However, there can be no
doubt that there is an initial presumption which favours the respondent
complainant”.
14. The Hon’ble Supreme Court of India in the case Rangappa
V. Mohan reported in AIR 2010 SC 1898, has held that, “the
presumption mandated by Section 139 of the Act does indeed include
the existence of legally enforceable debt or liability.
” In the present
case, the accused has not sent reply to the demand notice of the
complainant. The accused has conducted the cross-examination of the
complainant. I have minutely perused the cross-examination of the
complainant and it seems that, the accused has not denied the issuance
of cheque nor denied his signature on the cheque. Accused has admitted
the signature on the cheque as it is not denied by the accused.
Therefore, it can be gathered that, accused has not challenged the
signature from cheque (Exh. 24). This shows that, the signature of
accused from cheque (Exh. 24) is not in dispute. Therefore, the
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presumptions under Section 118 and 139 of the Act are raised in favor
of complainant.
15. The Hon'ble Supreme Court of India in case of
M.S.
Narayan Menon @ Mani V/s. State of Kerala and another (Appeal (Cri.)
1012 of 1999 decided on 04/07/2006) has laid down the rules
regarding the standards of proof for establishment of case as well as of
rebuttal of defence in the case filed under Section 138 of the Act. The
Hon'ble Supreme Court of India has observed that
“It is not necessary for the defendant to
disprove the existence of consideration by way of direct
evidence. The standard of proof evidently is pre-
ponderance of probabilities. Inference of pre-ponderance of
probabilities can be drawn not only from the materials on
records but also by reference to the circumstances upon
which he relies. Presumption drawn under a statute has
only an evidentiary value. Presumptions are raised in terms
of the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another.”
16. The Hon'ble Supreme Court of India in case of Sumeti VIJ
V/s. M/s. Paramount Tech Fab, Criminal Appeal No(s) 292 of 2021,
(Arising out of SLP (Crl.) No (s). 8498 of 2019), in which the decision
of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another, 4 (2019)
18 SCC 106 is discussed and wherein it has laid down the procedure as
to how the accused can rebut the presumption under Section118 and
139 of the Act,
“The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and
debt did not exist or that under the particular circumstances
of the case the non-existence of consideration and debt is so
probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory
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presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need
not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has to
be brought on record for getting the burden of proof shifted
to the complainant. To disprove the presumptions, the
accused should bring on record such facts and
circumstances, upon consideration of which, the court may
either believe that the consideration and debt did not exist
or their non-existence was so probable that a prudent man
would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied
upon are compelling, the burden may likewise shift again
on to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act. The accused
has also an option to prove the non-existence of
consideration and debt or liability either by letting in
evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in
the complaint, the case set out in the statutory notice and
evidence adduced by the complainant during the trial. Once
such rebuttal evidence is adduced and accepted by the
court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue”.
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17. The Hon'ble Bombay High Court in the case of
Vishnu Vs.
State of Maharashtra (Cri. Rev. Application No. 176/2015 decided on
24/01/2019) observed that,
“There cannot be any manner of dispute with
the proposition that once the presumption arising under
Section 118 read with Section 139 of the Act is raised, it can
be rebutted by the accused on preponderance of probability
at the trial. This can be done on the basis of cross-
examination of the complainant and his witnesses, if any,
and/or by leading independent defence evidence.”
18
. As accused has not challenged his signature on the cheque
(Exh. 24), the presumptions under Section 118 and 139 of the Act are
raised in favor of complainant. Therefore, in view of the observations
given in case of Rangappa V/s. Sri Mohan (Cited Supra), the accused
has to raise a probable defence which creates doubts about the
existence of a legally enforceable debt or liability and the prosecution
can fail. It also makes clear that, mere denial is not sufficient to rebut
the presumption which is raised in favor of complainant. As observed in
the case of
Vishnu Vs. State of Maharashtra (cited supra), accused has
many modes to bring on record his defence e.g. by replying upon
notice, complaint, complainant's evidence and also by mode of cross
examination, her own testimony or of other witnesses, if cross examined
and also through statement of accused recorded under section 313 of
the Code. In the present case, the accused has conducted the cross-
examination of complainant wherein he raised defences that:-
a) The complainant is not duly authorized to file the
present complaint and to depose in the case.
b) The complainant has not proved the transaction.
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c) The complainant has not proved the delivery of
goods to the accused.
d) The complainant has misused the cheque which was
issued for another invoice number.
e) The accused is not liable to pay the cheque amount.
The statement of accused under Section 313 of the Code is recorded
wherein he submitted that he had not ordered goods from the
complainant and he has not supplied it to him. The cheque was lying
with the complainant since long and he has misused the cheque.
19. So far as the first defence of the accused is concerned, the
accused has submitted that the complainant has not proved that he is
the partner of complainant partnership firm. Ld. Advocate for the
accused submitted that, the complainant has not produced any
document on record to show that, he is the partner of complainant
partnership firm. He has placed reliance on the decision of Hon’ble
Supreme Court of India in Milind Chandurkar V/s. Kalim M. Khan, 2011
(4) SCC 275. I have minutely perused the cited decision and in para
no. 14 to 16 it has been observed that,
“14. Relevant part of the affidavit filed by the appellant/complainant
before the trial Court reads as under:
"I, Shri Milind Shripad Chandurkar, Aged about 37 years, Indian
Inhabitant, Occ. Business, Proprietor of M/s. Vijay Automobiles,
having address at Sector-29, Dronagiri Node, Uran, Dist. Raigad,
take oath and state on solemn affirmation as under.....
I state that in due discharge of legal liability of the accused as
mentioned in foregoing paras, the accused issued one cheque
dtd. 28.4.2005 in my name i.e. in the Name M/s. Vijaya
Automobilies which was drawn on Development Credit Bank,
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Kurla Branch, Mumbai-70 bearing Cheque No.490592, for
Rs.7,00,000/- (Rupees Seven Lakhs only)."
Relevant part of his cross-examination reads as under:-
"It is true that till today I had not produced any documentary
evidence to show that I am owner of Vijaya
Automobiles......Till today I had not produced any
documentary evidence to support."
15. The complainant had also examined Shri S.K. Sharma,
owner of M/s. Vikas Travels under whom the respondent no.1
had been working as a sub-contractor. In his cross-examination,
Shri S.K. Sharma also stated as under:-
"I have no documentary evidence to show that complainant
Milind Shripad Chandurkar owns the petrol pump."
16. Thus, from the above, it is evident that the
appellant/complainant could not produce any document to show
that he was the proprietor of Vijaya Automobiles in spite of the
fact that the issue had been agitated by the respondent
no.1/accused at every stage. It is also evident from the
documents on record that in the list of witnesses the complainant
had mentioned the name of his banker as a witness, however, the
said banker was not examined.”
I have also perused para no. 23 of the above referred decision, which is
reproduced as follows:
“23. In the instant case, it is evident that the firm, namely, Vijaya
Automobiles, has been the payee and that the appellant cannot
claim to be the payee of the cheque, nor can he be the holder in
due course, unless he establishes that the cheques had been
issued to him or in his favour or that he is the sole proprietor of
the concern and being so, he could also be payee himself and
thus, entitled to make the complaint.
The appellant miserably failed to prove any nexus or connection
by adducing any evidence, whatsoever, worth the name with the
said firm, namely, Vijaya Automobiles. Mere statement in the
affidavit in this regard, is not sufficient to meet the requirement of
law. The appellant failed to produce any documentary evidence to
connect himself with the said firm. It is evident that the firm had a
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substantial amount of business as in one month it sold the diesel to
respondent no.
1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in
addition, have also been carrying out business with other persons.
Thus, a person with such a big business must have had transactions
with the bank and must have been a payee of income tax, sales tax
etc. Thus, in such a fact-situation, there would be no dearth of
material which could have been produced by the appellant to show
that he was the sole proprietor of the said firm. The appellant
failed to adduce any evidence in this regard, nor made any attempt
to adduce any additional evidence at the appellate stage, in spite of
the fact that the respondent is raising this issue from the initiation
of the proceedings.”
20. I have minutely perused the above cited decision. Ld.
Advocate for the complainant has invited my attention towards the
registration certificate filed at Exh. 22. I have perused the Registration
Certificate filed at Exh. 22. I have also perused the cross-examination
of the complainant wherein also some questions has been asked by the
accused on the registration certificate filed at Exh. 22. In the cross-
examination of the complainant, it has came on record that, the
registration certificate filed at Exh. 22 i.e. GST registration certificate,
detail of additional place of business and details of partner doesn’t bears
signature of someone or Stamp of Government. Some suggestions were
put to this witness that, the said certificate is false and fabricated but
the complainant has denied those suggestions. The complainant has
filed the certificate U/s. 65 (B) of Indian Evidence Act along with copy
of registration certificate but perusal of certificate U/s. 65 (B) of Indian
Evidence Act, it reveals that, it does not bear the signature of the
complainant and therefore it appears that, the certificate U/s. 65 (B) of
Evidence Act is of no use. Therefore, the copy of registration certificate
cannot be read in evidence.
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21. Ld. Advocate for the complainant has submitted that, the
accused has admitted in the statement recorded U/s. 313 of the Code of
Criminal Procedure that, complainant is a partner of partnership firm.
The following question was asked to the accused in the statement
recorded U/s. 313 of the Cr.P.C.
Q.2: It has come in the evidence of C.W. 1 Mr. Kamlesh K.
Zatakia that he is the partner of M/s. Akshar Plastic carrying on
business in plastic raw material and you are the partners of accused no.
1 partnership firm namely M/s. Guru Nanak Thermoplat Industries.
What you have to say about it?
Ans.: It is true.
Ld. Advocate for the accused submitted that, the statement of the
accused cannot be used against the accused. He placed reliance on the
decision of Hon’ble High Court of Calcutta in Sarit Kumar Bose V/s. Rita
Mallick and Another, 2024 SCC Online Cal 370. It has observed that,
“18. In the present case, the statement/admission under Section
313 is the (sole) only material upon which the conviction in this
case is based, as there is no evidence brought on record by the
complainant which proves the service of Notice as per the provision
under Section 138 N.I. Act, and therefore, no conviction can be
premised solely on the basis of the answers given by the accused
during his examination under Section 313 Cr.P.C. (Premchand vs
The State of Maharashtra (Supra)).”
He also placed reliance on the decision of Hon’ble Supreme Court of
India in Dehal Singh V/s. State of H. P. Dinesh Kumar V/s. State of H.P.,
AIR 2010 Supreme Court 3594. It has observed that,
“21. We do not find any substance in this submission of Mr. Mishra.
Statement under Section 313 of the Code of Criminal Procedure is
taken into consideration to appreciate the truthfullness or
otherwise of the case of prosecution and it is not an evidence.
Statement of an accused under Section 313 of the Code of Criminal
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Procedure is recorded without administering oath and, therefore,
said statement cannot be treated as evidence within the meaning of
Section 3 of the Evidence Act. Appellants have not chosen to
examine any other witness to support this plea and in case none
was available they were free to examine themselves in terms of
Section 315 of the Code of Criminal Procedure which, inter alia,
provides that a person accused of an offence is a competent witness
of the defence and may give evidence on oath in disproof of the
charges. There is reason not to treat the statement under Section
313 of the Code of Criminal Procedure as evidence as the accused
cannot be cross-examined, with reference to those statements.
However, when an accused appears as witness in defence to
disproof the charge, his version can be tested by his cross-
examination. Therefore, in our opinion the plea of the appellant
Dinesh Kumar that he had taken lift in the car is not fit to be
accepted only on the basis of the statements of the appellants
under Section 313 of the Code of Criminal Procedure. ”
22. I have perused the cited decision. I have also perused the
decision of Hon’ble Supreme Court of India in Alister Anthony Pareira vs
State Of Maharashtra, Criminal Appeal Nos. 1318-1320 of 2007,
decided on 12/01/20212. It has held that,
“From the above, the legal position appears to be this : the accused must
be apprised of incriminating evidence and materials brought in by the
prosecution against him to enable him to explain and respond to such
evidence and material. Failure in not drawing the attention of the accused
to the incriminating evidence and inculpatory materials brought in by
prosecution specifically, distinctly and separately may not by itself render
the trial against the accused void and bad in law;
firstly, if having regard to all the questions put to him, he was afforded an
opportunity to explain what he wanted to say in respect of prosecution
case against him and secondly, such omission has not caused prejudice to
him resulting in failure of justice. The burden is on the accused to
establish that by not apprising him of the incriminating evidence and the
inculpatory materials that had come in the prosecution evidence against
him, a prejudice has been caused resulting in miscarriage of justice.”
In the case in hand, the complainant came with the case that, he is a
partner of M/s. Akshar Plastics. In the evidence affidavit also, the
complainant has deposed on oath that, he is a partner of M/s. Akshar
Plastics. So far as the document is concerned, the complainant has filed
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the copy of registration certificate at Exh. 22 but as I discussed above,
the complainant has filed the certificate U/s. 65 (B) of Indian Evidence
Act but it does not bear the signature of the complainant and it is blank
one. Therefore, the certificate U/s. 65 (B) of Indian Evidence Act is of
no use. But the accused has admitted that, the complainant is a partner
of M/s. Akshar Plastics in his statement U/s. 313 of Cr.P.C. It is settled
principle of law that, conviction cannot be solely on the basis of
statement U/s. 313 of Cr.P.C. In the case in hand, the complainant has
deposed in his evidence affidavit that, he is a partner of M/s. Akshar
Plastics and the admission given by the accused U/s. 313 of Cr.P.C.
cannot be used as a corroboration. No doubt it is settled principle of
law that, the statement of accused U/s. 313 of Cr.P.C. is not a
substantive piece of evidence but it can be used for corroboration. In
the case in hand also, the complainant has deposed on oath that, he is a
partner of partnership firm and the said statement is corroborative by
the accused in his statement U/s. 313 of Cr.P.C.
23. The accused came with a another defence that, the
complainant has not given proper authorization to file the present
complaint and to depose in the case. It is the submission of the Ld.
Advocate for the accused that, there are two partners of complainant
firm but the complainant has not filed any document on record to show
that, the other partner has given authority to another partner to file
complaint or to depose in the case. Ld. Advocate for the accused has
placed reliance on the decision of Hon’ble Bombay High Court in Ashok
Bampto Pagui V/s. M/s. Agencia Real Canacona Pvt. Ltd. and Anr., 2007
Cri. L.J. 4645. In the cited decision, it has held that, “director as an
individual director, has no power to act on behalf of company. He is
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only one of the body of director called the board of directors and alone
he has no power except such as may be delegated to him by the board
of directors or given to him by the article of association of company.” In
the case in hand, as per the case of complainant, he is a partner of
complainant partnership firm. I have perused the Section 18 of Indian
Partnership Act 1932 which reads as follows:
“Section 18- Partners to be agent of the firm- subject to provisions
of this act, a partner is the agent of the firm for the purpose of the
business of the firm.”
Perusal of the above provision, it makes clear that the partner of
the partnership firm acts as an agent of partnership firm. It is also settle
principle of law that, act of one partner is the act of the firm.
Therefore, the present complaint filed by one partner of the
complainant firm is legal one.
24. The accused came with a another defence that, the
complainant has not proved the transaction nor proved the delivery of
goods. Ld. Advocate for the complainant submitted that, the
complainant has filed the invoice at Exh. 23. It is the submission of Ld.
Advocate for the complainant that, as per the invoice filed at Exh. 23,
the complainant has proved the outstanding amount. I have perused
the invoice filed at Exh. 23. Perusal of the invoice at Exh. 23, it seem
that, it is raised against the amount of Rs. 2,84,380/-.
25. Ld. Advocate for the accused has submitted that, the
complainant has not proved the fact that, the goods were delivered to
the accused. He has not filed any document on record to show that, the
goods were delivered to the accused. He has invited my attention
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towards the cross-examination of the complainant wherein the
complainant has admitted that, on tax invoice at Exh. 23, there is
neither signature nor seal of the accused company as acknowledgment
of receipt of goods and this invoice. Ld. Advocate for the accused
submitted that, the complainant has to prove the transaction more
particularly delivery of goods. He placed reliance on the decision of
Hon’ble Bombay High Court in Karam Hussain Mohabbat Ali Shah V/s.
Abdul Latif Lakdwala and Anr., AIR Online 2023 Bom 376. It has
observed that,
“I have read the contentions in the notice reply. The Respondent
has made it very clear that the plywood was not delivered to him.
He has also made it clear that cheques are to be deposited only
when plywood is delivered. But in fact, the Appellant was bound
to return the cheques and as they were not returned, instructions
were given to the bank to stop the payment. The Appellant does
not dispute the fact that notice reply is not received by him. From
reading the evidence of two bankers examined by the Respondent,
it is clear that the stop payment instructions were issued to them.
It is clear that the concerned cheque books were issued in the year
2003. On this background, it was obligatory on the part of the
Appellant to prove delivery of plywood. Surprisingly, he filed four
invoices. However, they were not proved during evidence. Even
with the consent of both the sides, I have read them. Even
Complainant admits during the cross-examination that he is not
having acknowledgment for the delivery of plywood.”
In the cited decision, the accused had replied to the demand
notice and denied the delivery of goods. In the case in hand, the
accused did not reply to the demand notice sent by the complainant. I
have perused the decision of Hon’ble Supreme Court of India in P.
Rasiya V/s. Abdul Nazer and Anr., Criminal appeal No. 1233 -1235 of
2022, (Arising out of SLP (Cri.) Nos. 7430- 7432/2022 @ D.No.13470
of 2019), decided on 17/08/2022. It has been observed that,
“7. Feeling aggrieved and dissatisfied with the judgment and orders
passed by the Appellate Court affirming the conviction of the accused
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under Section 138 of the N.I. Act, the accused preferred three different
Revision Applications before the High Court. By the impugned common
judgment and order, the High Court has reversed the concurrent findings
recorded by both the courts below and has acquitted the accused on the
ground that, in the complaint, the Complainant has not specifically stated
the nature of transactions and the source of fund. However, the High
Court has failed to note the presumption under Section 139 of the N.I.
Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of
any debt or other liability. Therefore, once the initial burden is
discharged by the Complainant that the cheque was issued by the
accused and the signature and the issuance of the cheque is not disputed
by the accused, in that case, the onus will shift upon the accused to prove
the contrary that the cheque was not for any debt or other liability. The
presumption under Section 139 of the N.I. Act is a statutory presumption
and thereafter, once it is presumed that the cheque is issued in whole or
in part of any debt or other liability which is in favour of the
Complainant/holder of the cheque, in that case, it is for the accused to
prove the contrary. The aforesaid has not been dealt with and considered
by the High Court. The High Court has also failed to appreciate that the
High Court was exercising the revisional jurisdiction and there were
concurrent findings of fact recorded by the courts below.”
26. Perusal of above decision it seems that, once signature on
the cheque is admitted then the onus shifts upon the accused to prove
the contrary. In the case in hand also, the accused has admitted his
signature. Therefore, it is necessary to peruse the evidence of the
complainant to ascertain whether the burden is discharged by the
accused.
27. Ld. Advocate for the accused has submitted that, the
complainant has not mentioned in the complaint that, the cheque was
issued by the accused against the invoice No. 504. Ld. Advocate for the
accused submitted that, it is necessary for the complainant to mention
that the cheque was issued against the invoice number. He placed
reliance on the decision of Hon’ble Supreme Court of India in John K.
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Abraham V/s. Simon C. Abraham and Anr. AIR 2014 SC (Supp) 761. It
has observed that,
“9. Keeping the above factors in mind, when we examine the
judgment impugned in this appeal, we find that the High Court
committed a serious illegality in reversing the judgment of learned
Chief Judicial Magistrate. While reversing the judgment of the trial
Court, what weighed with the learned Judge of the High Court
was that in the 313 questioning, it was not the case of the
appellant that a blank signed cheque was handed over to his son
and that even in the cross- examination it was not suggested to
PW-1 that a blank cheque was issued. The High Court was also
persuaded by the fact that the appellant failed to send any reply to
the lawyer’s notice, issued by the respondent. Based on the above
conclusions, the High Court held that the presumption under
Section 118 and 139 of the Negotiable Instruments Act could be
easily drawn and that the appellant failed to rebut the said
presumption. On that single factor, the learned Judge of the High
Court reversed the judgment of the trial Judge and convicted the
appellant. It has to be stated that in order to draw the presumption
under Section 118 read along with 139 of the Negotiable
Instruments Act, the burden was heavily upon the complainant to
have shown that he had required funds for having advanced the
money to the accused; that the issuance of the cheque in support
of the said payment advanced was true and that the accused was
bound to make the payment as had been agreed while issuing the
cheque in favour of the complainant.”
28. I have perused the decision of Hon’ble Supreme Court of
India in Ragappas case (Cited supra). Perusal of said decision, it makes
clear that, once the issuance of cheque and signature on the cheque is
admitted by the accused, then the presumption lies in favour of
complainant and burden lies on the complainant to rebut it. In the
case in hand, it is the defence of the accused that the cheque was issued
by him for another invoice. He has not given any details against which
invoice, the cheque was issued. The accused has examined Swapnil Patil
(D.W. 1) at Exh. 37 who is the Branch Manager of Bank of India,
Khodadad Circle, Dadar (E), Mumbai. This witness was examined by
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the accused to prove the statement of his bank account for the period of
April 2016 to April 2019. It is the submission of Ld. Advocate for the
accused that, the other cheque numbers are encashed. In other words,
the accused wants to show or prove that, the another cheque numbers
of his account which were issued after the present cheque were also
honoured. In other words, the accused wants to show and prove that,
the cheque was lying with the complainant. In the statement of
recorded U/s. 313 of the Code of Criminal Procedure, he deposed that,
the cheque was lying with complainant since long and he has misused
the cheque. Then question remains unanswered as to why the accused
did not ask for the cheque lying with the complainant. The complainant
has filed the invoice at Exh. 23. Therefore, it seems that, the accused
has not rebutted the presumption.
29. As I discussed above the accused has not brought on
record any material by way of cross-examination or in the statement of
313 of the Code. Therefore, it becomes clear that the accused has
utterly failed to rebut the presumption raised under Section 118 & 139
of the Act. Therefore, I hold that the complainant has duly proved that
accused has issued the subject cheque from his account in favour of the
complainant towards the legally enforceable debt. Hence, point No. 1 is
answered in the “affirmative”.
As to Point No. 2:-
30. As per contentions and evidence of complainant, the
cheque No. 032977 (Exh. 24) was presented for encashment. However,
the cheque was returned with remark as ‘Exceed arrangement’. In
support of said contentions, the complainant produced the cheque
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return memo of (Exh. 25). It is seen from the bank memo (Exh. 25)
that, the cheque was returned with endorsement ‘Exceed arrangement’.
The memo (Exh. 25) bears seal and signature of concerned bank.
Therefore, here it is necessary to mention Section 146 of the Negotiable
Instruments Act;
“
The Court shall, in respect of every proceeding
under this Chapter, on production of bank's slip or memo
having thereon the official mark denoting that the cheque
has been dishonored, presume the fact of dishonor of
such cheque, unless and until such fact is disproved”.
31. So, as per the aforesaid provision, the bank memo (Exh.
25), is having presumptive value as per Section 146 of the N.I Act.
Admittedly, the said presumption is rebuttable. However, nothing is
brought on record by the accused to rebut the presumption in respect of
bank memo (Exh. 25). After perusal of said memo, it is seen that the
cheque No. 032977 (Exh. 24) was dishonored for reason ‘Exceed
arrangement’’. However, nothing is brought by the accused on record to
show his bonafide as well as also to show that at the relevant time, the
amount mentioned in the cheque was pending in his account. Hence, no
hurdle to held that the cheque was dishonored with reason ‘Exceed
arrangement’. Consequently, point No. 2 is answered in the
“affirmative”.
As to Point Nos. 3 and 4 :-
32. As per evidence of Kamlesh K. Zatakia (C.W.1), after
dishonor of cheque of Rs. 032977 (Exh. 24), he issued demand notice
dated 17/07/2018 (Exh.26). The complainant has filed postal receipt
at Exh. 27 to show that, the notice was issued on the correct address of
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the accused. In support of said contention, the complainant produced
demand notice dated 17/07/2018 (Exh. 26) and postal receipt (Exh.
27). Upon perusal of demand notice (Exh. 26), postal receipt (Exh. 27),
it is seen that, the complainant issued demand notice on 17/07/2018 to
the accused and same was received by the accused. The demand notice
was sent on the following address :-
To,
M/s. Guru Nanak Thermoplast Industries
Plot No. 752/1 & 2, Sidhvan Udyog Bhavan,
Unit No. 4, Kalaria, Somnath, Nani Daman – 396 210.
33. Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipt at Exh. 27 that, the said notice
was delivered on the correct address of accused. Ld. Advocate for the
accused submitted that, the complainant did not sent the notice to the
each of the partner of partnership firm. It is the submission of Ld.
Advocate for the accused that, the demand notice is required to be sent
to each of the partner of the partnership firm along with partnership
firm. It is submission that, in the case in hand, the demand notice was
not sent to the partners of partnership firm and therefore, the demand
notice is invalid. He placed reliance on the decision of Hon’ble
Karnataka High Court in Smt. K. R. Aruna Prasad V/s. Shri. V.
Raghavendra, Criminal Petition No. 9909/2017, decided on
19/09/2024. I have minutely perused the cited decision, In the cited
decision, it has held that,
“The decision in Ashuthosh's case has been dealt with supra, that
decision was not one which was rendered under Section 138 or
141 of the Negotiable Instruments Act and as such would not
assist the petitioners in any manner. The decision in SMS
Pharmaceuticals case was also one relating to a company and lays
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down the tests as regards the person in charge of the day-to-day
affairs of the company, which again would not help the
petitioners.”
I have also perused the decision of Hon’ble Supreme Court of
India in Krishna Textport and Capital Market Ltd. V/s. lla. A Agarwal
and others, Criminal Appeal No. 1220/2009, decided on 06/05/2015.
It has observed that,
“In our view, Section 138 of the Act does not admit of any necessity
or scope for reading into it the requirement that the directors of the
Company in question must also be issued individual notices under
Section 138 of the Act. Such directors who are in charge of affairs of
the Company and responsible for the affairs of the Company would
be aware of the receipt of notice by the Company under Section 138.
Therefore neither on literal construction nor on the touch stone of
purposive construction such requirement could or ought to be read
into Section 138 of the Act. Consequently this appeal must succeed.
The order passed by the High Court is set aside. Since the matter
was at the stage of considering application for leave to appeal and
the merits of the matter were not considered by the High Court, we
remit the matter to the High Court for fresh consideration which
may be decided as early as possible. Concluding so, we must record
that the decision of the Division Bench of the Madras High Court in
B. Raman & Ors. Vs. M/s. Shasun Chemicals and Drugs Ltd. (supra)
was incorrect and it stands overruled. The appeal is allowed in these
terms.”
Perusal of the above cited decision it makes clear that, the notice to the
drawer of the cheque is only required and as per the cited decision, the
separate notice to the directors of the company is not required. In the
case in hand, the complainant has issued demand notice to the drawer
of the cheque i.e. accused no. 1 partnership firm and therefore though
the notice to the partners of the partnership firm was not issued, then
also he does not affect on the present case.
34. Therefore, there is no hurdle to held that complainant
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sent demand notice on the correct address of accused. Here, it is
necessary to mention the observations given by Hon'ble Supreme Court
of India in case of C. C. Alavi Haji V/s. Palapetty Muhammeed and anr
reported in All MR (Cri.) 2007. Wherein it is observed by Hon'ble
Supreme Court of India that,
“15. Insofar as the question of disclosure of necessary particulars
with regard to the issue of notice in terms of proviso (b) of Section
138 of the Act, in order to enable the Court to draw presumption
or inference either under Section 27 of the G.C. Act or Section 114
of the Evidence Act, is concerned, there is no material difference
between the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing the drawer
of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands
complied with. It is needless to emphasise that the complaint must
contain basic facts regarding the mode and manner of the issuance
of notice to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section 138 of
the Act, the Court is required to be prima facie satisfied that a case
under the said Section is made out and the aforenoted mandatory
statutory procedural requirements have been complied with. It is
then for the drawer to rebut the presumption about the service of
notice and show that he had no knowledge that the notice was
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of
notice is a clear departure from the rule of Criminal Law, where
there is no stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not receive the
notice sent by post, can, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of summons
(by receiving a copy of complaint with the summons) and,
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therefore, the complaint is liable to be rejected. A person who does
not pay within 15 days of receipt of the summons from the Court
along with the copy of the complaint under Section 138 of the Act,
cannot obviously contend that there was no proper service of
notice as required under Section 138, by ignoring statutory
presumption to the contrary under Section 27 of the G.C. Act and
Section 114 of the Evidence Act. In our view, any other
interpretation of the proviso would defeat the very object of the
legislation. As observed in Bhaskarans case (supra), if the giving of
notice in the context of Clause (b) of the proviso was the same as
the receipt of notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section 138 of
the Act.”
In the matter in hand also, as discussed earlier, it is duly
established that the complainant sent demand notice on the correct
address of accused. As observed by Hon’ble Supreme Court of India in
the case of
C. C. Alavi Haji V/s. Palapetty Muhammeed and anr. (cited
supra), when the notice is sent by registered post by correctly
addressing the drawer of the cheque, the mandatory requirement of
issue of notice in terms of Clause (b) of proviso to Section 138 of the
Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
35. As already discussed in earlier points, it becomes clear that
the subject cheque (Exh. 24) was dishonored on 12/07/2018 for the
reason of ‘Exceed arrangement’. It is seen from the record that, the
notice (Exh. 26) was posted on 20/07/2018 to the accused and so, it is
seen to be sent within 30 days of dishonor of cheque. As discussed
earlier, notice was duly served upon the accused. It is not defence of
the accused that he repaid the cheque amount within 15 days of notice
and summons of this proceeding. So, point Nos. 3 and 4 are answered
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in the “affirmative”.
As to Point No.5 :
36. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are proved by
the complainant. As already discussed in earlier points, it becomes clear
from memo (Exh. 25) that the cheque (Exh. 24) was dishonored on
12/07/2018. The notice (Exh. 26) was sent on 17/07/2018 and so, it is
seen to be issued within 30 days of dishonor of cheque (Exh. 24).
Therefore, the accused has to pay cheque amount within fifteen days
from 23/07/2018 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 08/08/2018. The complainant
has to file complaint with 30 days from the day of cause of action. The
complaint was filed on 06/09/2018. Therefore, the complaint is seen to
be filed within limitation. Hence, in view of entire evidence of the
complainant and failure of the accused to rebut presumptions given
under section 118 and 139 of the Act, it becomes clear that the accused
has committed an offence punishable u/s 138 of the Act. Consequently,
point No. 5 is answered in the “affirmative”.
AS TO POINT NO.6
37. Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved his claim with
cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
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probation to him 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.
Mumbai (Y. P. Pujari )
Date:- 14/07/2025 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
38. Accused and his advocate are present. Accused submitted
that, minimum sentence may be awarded. Further, the complainant is
present but his advocate is absent. Complainant has submitted that,
maximum punishment may be awarded.
39. The object of the Act is to enhance the credibility of the
negotiable instruments. The cheque involved in the case in hand is of
Rs. 2,84,380/-. In the present matter, on 12/07/2018 the disputed
cheque was presented to the drawee bank. If it would have had
encashed regularly, complainant could have received the amount in the
month of July 2018. That amount is admittedly lying with the accused.
The Hon’ble Supreme Court of India in the case of
R.Vijayan V. Baby
and anthers AIR 2012 SC 528, has discussed and expressed several
aspects to determine the amount of compensation and interest on the
cheque amount. Para Nos. 14 to 18 of the above judgment needs to be
reproduced here and those are as under:
“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
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the power to levy fine upto twice the cheque amount
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
Direction to pay compensation by way of restitution in
regard to the loss on account of dishonour of the cheque
should be practical and realistic, which would mean not only
the payment of the cheque amount but interest thereon at a
reasonable rate. Uniformity and consistency in deciding
similar cases by different courts, not only increase the
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice.”
40. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding 9
% per annum interest on the cheque amount by way of compensation to
the complainant. If interest on cheque total amount (Rs. 2,84,380/-) at
the rate of 9 % p.a. is calculated for the period of 82 months i.e. from
the filing of present complaint (06/09/2018 to 14/07/2025), it comes
to Rs. 1,74,894/-. Cheque amount is of Rs. 2,84,380/-. Thus, the
amount of Rs. 4,59,274/- is necessary to give to the complainant as an
compensation.
41. The object of the Act is to enhance the credibility of the
negotiable instruments. There is no criminal antecedent of accused
came on record. Thus, after considering said circumstances, amount of
cheques, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for three months will be proper and
justified.
42. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
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case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed:
ORDER
1. Accused no. 3. Parminder Singh Ahluwalia- Partner of
accused no. 1 M/s. Guru Nanak Thermoplast
Industries is convicted under Section 255 (2) of the
Code of Criminal Procedure, 1973 for an offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 and sentenced to suffer simple
Imprisonment for three months.
2. Accused No. 1 and 3 are directed to pay jointly or
severally compensation Rs. 4,59,274/- (Rs. Four
Lakhs Fifty Nine Thousand Two Hundred Seventy
Four Only) to the complainant within three months
from today, in default to suffer Simple Imprisonment
for three months.
3. Accused No. 3 to surrender to his bail bond.
4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
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5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
6. The copy of this Judgment shall be given to the convicted
accused, free of cost, in view of section 363(1) of the Code
of Criminal Procedure, 1973.
7. Dictated and pronounced in open court.
Mumbai (Y. P. Pujari )
Date:- 14/07/2025 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 14/07/2025
Typed On : 14/07/2025
Signed On : 14/07/2025
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