Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 3622/SS/2018
CNR No. : MHMM19-009434-2018
Received On : 10/09/2018
Registered On : 10/09/2018
Decided On : 15/01/2025
Duration :Y-06, M-04, D-05
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 3622/SS/2018 Exh. 86
Mrs. Preeti Manbodhan Mishra.
Age : 39 years, Occu : Job
Suman Tower-401, 3rd Cross
Lane Lokhandwala, Andheri (W),
Mumbai – 400 053 -- Complainant
Versus
Mr. Nitin Shamrao Joshi.
Age : Not known, Occu : Not known
M/s. Shreeji Developers,
503, Astoria Building,
Raheja Garden, L.B.S. Road,
Thane (W), Thane – 400 604. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Adv. Mr. S. N. Imam for the complainant.
Adv. S. K. Kamble for the accused.
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JUDGMENT
(Delivered on 15th of January 2025 )
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“the Act” for short) for dishonor of a cheque for amount of Rs.
24,00,000/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, complainant knows
the accused from last 11 years. Accused approached the complainant
with a investment scheme to invest money in a Sugar Tender. The
accused promised to complainant that, if she invested an amount of Rs.
19,50,000/-, then he will pay Rs. 35,00,000/- within a period of 3
months. The complainant agreed to invest the said amount with
accused. The complainant has raised gold loan of Rs. 2,31,291/- from
Yes Bank and Rs. 6,00,000/- from State Bank Credit Card for her
pregnancy hospital expenses. The complainant has obtained loan of Rs.
8,33,000/- from different bank. The complainant has given Rs.
5,00,000/- to accused by cheque no. 382222 dated 21/07/2017 and
amount of Rs./ 2,00,000/- by cheque No. 615181 dated 21/07/2017.
The complainant has given Rs. 7,00,000/- by her own. The complainant
has given Rs. 2,50,000/- from her brother namely Amit Mishra and Rs.
10,00,000/- was taken from her uncle Padamlal Tiwari. On the say of
complainant, Amit Mishra and Padamlal Tiwari have given the said
amount to the accused. The complainant has given total amount of Rs.
19,50,000/- to the accused.
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03. Complainant has further submitted that, accused had
issued 8 cheques against investment and profit money in favour of
complainant, Amit Mishra and Padamlal Tiwari and also make a
promissory note dated 24/03/2018 and also given assurance to the
complainant that all the cheques will be cleared. Complainant
deposited all the cheques in her bank but except two cheques, all the
cheques were dishonoured with different reasons. After dishonoured of
said cheques, accused again issued a cheque bearing no. 015502 dated
22/06/2018 for an amount of Rs. 24,00,000/- with compensation
drawn on RBL Bank Limited, Dombivali (W) branch in favour of the
complainant. Thereafter, the complainant deposited the above said
cheque for encashment in her Yes Bank Ltd., Lokhandwala Andheri
(West) branch, Mumbai. The same was returned unpaid from drawee
bank with endorsement “Signature Differs”. Accordingly, the Yes Bank
issued memo. Thereafter, complainant went to the Oshiwara Police
Station, and lodged the written complaint dated 19/07/2018 against
the accused. Thereafter, complainant contacted the accused and
requested to pay cheque amount but the accused intentionally not paid
said amount. Thereafter, she issued demand notice dated 24/07/2018
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. 13 which were
read over and explained to the accused in vernacular, to which he
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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 has not shown the source of money.
b) The transaction taken place with Amit Mishra and
Padamlal Tiwari are different transactions and
complainant alone has no right to recover the entire
amount.
c) The cheque amount is more than the liability.
d) The blank signed cheques were issued to the
complainant at the time when the complainant has
given Rs. 7,00,000/- to him as a security.
06. The statement of accused under Section 313 of the Code of
Criminal Procedure, 1972 (in short 'the Code') was recorded vide Exh.
67. In his statement U/s. 313 of the Code, accused has submitted that,
false complaint is filed.
07. Heard Ld. Advocate Shri. S.N. Imam for complainant and
Ld. Advocate Shri. Kamble Sayabanna K. for accused and also perused
and considered the written notes of argument filed by both parties at
Exh. 82 and 84.
08. From perusal of complaint, record and defence of the
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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.
015502 (Exh. 42) 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
“Drawers Signature differs”?
Yes.
3.
Does the complainant prove that she had
issued demand notice to the accused within
limitation demanding cheque amount?
Yes.
4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under Section 138 of the
Negotiable Instruments Act ?
Yes.
6. What order? The accused
is convicted.
09. In order to prove her case, the complainant has filed her
evidence affidavit as a (C.W.1) at Exh. 16. The complainant has also
filed evidence affidavit of two witnesses namely Mr. Padamlal Vrindavan
Tiwari as a (C.W.2) at Exh. 52 and Mr. Amit Manbodhan Mishra as a
(C.W.3) at Exh. 53. Complainant also examined one bank witness
namely Mr. Ravindra Sadanand Nagvekar as a (C.W.4) at Exh. 76. The
complainant also placed her reliance upon following documents:
Description of documents Exhibit numbers
Original 6 cheques Exh. 31 to 36
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6 cheque returned memos Article A, Exh. 37 to 39,
Article B and C
Respectively.
Letter issued by accused to the complainant Exh. 40
Copy of complaint given to the Oshiwara
Police Station
Exh. 41
Original disputed cheque Exh. 42
Cheque returned memo Exh. 81
Office copy of notice Exh. 43
Postal receipt Exh. 44
Track report Article -E
REASONS
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the complainant has filed her evidence affidavit as a (C.W.1)
at Exh. 16. As per her evidence, she knows the accused from last 11
years. Accused approached her with a investment scheme to invest
money in a Sugar Tender. The accused promised to her that, if she
invested an amount of Rs. 19,50,000/-, then he will pay Rs. 35,00,000/-
within a period of 3 months. She agreed to invest the said amount with
accused. She has raised gold loan of Rs. 2,31,291/- from Yes Bank and
Rs. 6,00,000/- from State Bank Credit Card for her pregnancy hospital
expenses. She has obtained loan of Rs. 8,33,000/- from different bank.
She has given Rs. 5,00,000/- to accused by cheque no. 382222 dated
21/07/2017 an amount of Rs. 2,00,000/- by cheque No. 615181 dated
21/07/2017. She has given Rs. 7,00,000/- by her own. She has given
Rs. 2,50,000/- from her brother namely Amit Mishra and Rs.
10,00,000/- was taken from her uncle Padamlal Tiwari. On her say,
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Amit Mishra and Padamlal Tiwari have given the said amount to the
accused. She has given total amount of Rs. 19,50,000/- to the accused.
11. It has further came in her evidence that, accused issued 8 cheques
against invested and profit money in favour of complainant, Amit
Mishra and Padamlal Tiwari and also make a promissory note dated
24/03/2018 and also given assurance to her that all the cheques will be
cleared. She deposited all the cheques in her bank but except two
cheques, all the cheques were dishonoured with different reasons.
After dishonoured of said cheques, accused again issued a cheque
bearing no.015502 dated 22/06/2018 for an amount of Rs. 24,00,000/-
with compensation drawn on RBL Bank Limited, Dombivali (W) branch
in her favour. Thereafter, she deposited the above said cheque for
encashment in her Yes Bank Ltd., Lokhandwala Andheri (West) branch,
Mumbai. The same was returned unpaid from drawee bank with
endorsement “Signature Differs”.
12. The accused has conducted the cross-examination of the
complainant. In his cross-examination, the accused has raised defences
that,
a) The complainant has not shown the source of money.
b) The transaction taken place with Amit Mishra and
Padamlal Tiwari are different transactions and
complainant alone has no right to recover the entire
amount.
c) The cheque amount is more than the liability.
d) The blank signed cheques were issued to the
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complainant at the time when the complainant has
given Rs. 7,00,000/- to him as a security.
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. I have perused the decision of Hon’ble Bombay High
Court, Panaji Bench in the case of VPK Urban Co-Operative Society Ltd.
V/s. Shri. Sidheshwar Janardhan Surlakar & Anr., criminal Appeal No. 1
of 2014. I have also perused the decision of Hon’ble Supreme Court of
India in the case of Hiten P. Dalal V/s. Bratindranath Banerjee, 2001
Cri.L.J.4647. I have also perused the decision of Hon’ble Supreme Court
of India in the case of P. Rasiya V/s. Abdul Nazer & Anr., 2023 ALL MR
(Cri) 399 (S.C.). 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
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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.
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. I have perused the decision of Hon’ble Supreme Court of
India in M/s. Kalamani Tex & Anr V/s. P. Balasubramanian, 2021 ALL
SCR (Cri) 411. I have also perused the decision of Hon’ble Supreme
Court of India in the case of Bir Singh V/s. Mukesh Kumar, 2019 ALL
SCR (Cri) 510. 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
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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
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
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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”.
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
. In the case in hand, the accused has not challenged the
issuance of cheque but denied the signature on the cheque. As accused
has challenged his signature on the cheque (Exh. 42). The accused
came with a defence that, he has given blank cheque as a security but
said cheque does not bear his signature. It is the submission of accused
that, the disputed cheque does not bear his signature and the cheque is
also dishonoured with endorsement “Signature differs”. On the contrary,
it is the submission of the complainant that though the cheque is
dishonoured with a reason “Signature differs” then also it comes within
a ambit Section 138 of N.I. Act.
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19. I have perused the cheque return memo filed at Exh. 81
and it seems that, the reason for dishonoure of cheque is mentioned as
“Drawers Signature Differs”. Ld. Counsel for accused submitted that,
this reason does not come within the purview of Section 138 of N.I.Act.
I have also perused the decision of Hon’ble Supreme Court of India in
Laxmi Dyechem V/s. State of Gujarat, criminal appeal no. 1910-1949 of
2012 (arising out of SLP (criminal) No. 1780-1819 of 2011, decided on
27/11/2012. In this decision it has been held that, the signature on the
cheque is missing is also comes within the purview of Section 138 of
Negotiable Instruments Act.
20. I have also perused the decision of Hon’ble Supreme Court
of India in Ajitsinh Chehuji Rathod V/s. State of Maharashtra and anr.,
criminal appeal arising out of SLP (Criminal) no. 16641 of 2023
decided on 29/01/2024. In the cited decision also, the accused has
taken a plea that, disputed cheque does not bear his signature. In the
cited decision, it has observed in para no. 16 to 18 that,
“16. Thus we are of the view that if at all the appellant was
desires of proving that, the signatures as appearing on the cheque
issued from his account were not genuine, then he could have
procured a verified copy of his specimen signatures from the bank
and a request could not have been made to summon the concern
Bank official in defence for giving in evidence regarding the
genuineness or otherwise of the signature on the cheque.
17. However, despite having opportunity, the accused appellant
did not put any question to the bank official examined in defence
for establishing his plea of purported mismatch of signature on the
cheque in question and hence we are of the firm opinion that, the
appellant Court was not required to come to the aid and assistance
of the appellant for collecting defence evidence at his behest. The
presumptions under the N.I.Act albeit rebuttable operate in favour
of the complainant. Hence, it is for the accused to rebut such
presumptions by leading appropriate defence evidence and the
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Court cannot be accepted to assist the accused to collect the
evidence on his behalf.
18. The appellant has sought comparison of the signature as
appearing on the cheque through the handwriting expert by filing
an application before the trial Court which rejected the same vide
order dated 13/06/2019. The said order was never challenged and
had thus attained finality.”
21. In the case in hand, the accused has taken a defence that,
the blank cheque was given to the complainant as a security and he has
not signed the cheque. In the case in hand, the accused only denied his
signature on the cheque and he has not examined any bank witness nor
compared the specimen signature available with the bank. Further,
accused has not taken efforts to compare the signatures on the cheque
from the handwriting expert. It is settle principle of law that, mere
denial is not sufficient.
22. Considering the above discussion it seems that 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
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present case, the accused has conducted the cross-examination of
complainant wherein he raised another defences that:-
a) The complainant has not shown the source of money.
b) The transaction taken place with Amit Mishra and
Padamlal Tiwari are different transactions and
complainant alone has no right to recover the entire
amount.
c) The cheque amount is more than the liability.
d) The blank signed cheques were issued to the
complainant at the time when the complainant has
given Rs. 7,00,000/- to him as a security.
The statement of accused under Section 313 of the Code is recorded
wherein he submitted that false complaint is filed.
23. So far as the first defence of the accused is concerned, the
accused has submitted that, the complainant has not shown source of
income or amount. Complainant came with a case that, as per the
investment proposal of the accused, she invested Rs. 7,00,000/- with
the accused. The complainant has issued a cheque No. 382222 dated
21/07/2017 of Rs. 5,00,000/- and cheque No. 615181 of Rs. 2,00,000/-
dated 21/07/2017 to the accused. As per the evidence of complainant,
an amount of Rs. 2,50,000/- was taken from the Amit Mishra who is her
brother and Rs. 10,00,000/- from Padamlal Tiwari who is her uncle. In
the cross-examination also, some questions in respect of mode of
payment came to be asked to the complainant and the complainant
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answered that, the total amount of Rs. 19,50,000/- was transferred to
the accused from her account, her brother’s and her uncle’s account.
24. Ld. Advocate for the complainant has submitted that, in the
written notes of argument, the accused has admitted that, he has
received an amount of Rs. 19,50,000/-. I have perused the written notes
of argument of the accused and it seems that, he has admitted that, he
has received an amount of Rs. 19,50,000/- from the complainant. The
complainant has examined Mr. Padamlal Vrindavan Tiwari as a (C.W.2)
at Exh. 52 and Mr. Amit Manbodhan Mishra as a (C.W.3) at Exh. 53. I
have perused the evidence of both these witnesses and it seems that, it
has came in their evidence that, they have transferred an amount of Rs.
10,00,000/- and Rs. 2,50,000/- respectively to the accused on the say of
complainant. It is seen from the evidence of both these witnesses that,
they have transferred an amount of Rs. 10,00,000/- and Rs. 2,50,000/-
on the say of complainant to the account of accused. From the above
discussion it seems that, it is proved by the complainant that the total
amount of Rs. 19,50,000/- was transferred to the accused.
25. The accused has submitted that, it seems from the case of
complainant that, the transaction taken place with complainant, Amit
Mishra and Padamlal Tiwari are separate and different transactions.
Therefore, it is the submission of the accused that the complainant has
no right to recover the total amount. On the contrary, the complainant
submitted that, the entire amount was transferred on the say of
complainant and the accused and Amit Mishra and Padamlal Tiwari
were not known to each other. I have perused the evidence of
complainant and complainant came with a case that, she has
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transferred an amount of Rs. 7,00,000/- and Amit Mishra transferred
Rs. 2,50,000/- and Padamlal Tiwari transferred an amount of Rs.
10,00,000/- to the accused. Ld. Advocate for the accused submitted
that, the cheque filed at Exh. 31 to 36 were issued by the accused in the
name of complainant, Amit Mishra and Padamlal Tiwari separately. It is
the submission of accused that, the cheques issued separately in the
name of complainant, Amit Mishra and Padamlal Tiwari, which shows
that, the each transaction is separate transaction. I have perused the
cheques filed at Exh. 31 to 36 and perusal of these cheques it seems
that, cheque at Exh. 31 and 32 were issued in the name of complainant,
the cheque at Exh. 33 and 34 were issued in the name of Amit Mishra
and cheques at Exh. 35 and 36 were issued in the name of Padamlal
Tiwari. Admittedly, these cheques were dishonoured and thereafter as
per the case of complainant, the accused has issued present cheque at
Exh. 42 in the name of complainant.
26. The complainant has examined Mr. Padamlal Vrindavan
Tiwari as a (C.W.1) at Exh. 52 and Mr. Amit Manbodhan Mishra as a
(C.W.3) at Exh. 53 and as per the evidence of these witnesses, they have
transferred the amount in the account of accused as per the say of
complainant. Complainant also came with a specific case that, she has
only transferred Rs. 7,00,000/- and Amit Mishra transferred Rs.
2,50,000/- and Padamlal Tiwari transferred Rs. 10,00,000/- on her say
in the account of accused. I have perused the promissory note issued by
the accused at Exh. 40. Perusal of the said promissory note (Exh. 40 ) it
seems that, the accused has admitted that, he has received total amount
of Rs. 19,50,000/-.
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27. Perusal of the above discussion, it seems that, the amount
of Rs. 19,50,000/- was transferred to the accused by the complainant,
Amit Mishra and Padamlal Tiwari. Amit Mishra and Padamlal Tiwari
have transferred the said amount on the say of complainant. The
accused admitted that he has received an amount of Rs. 19,50,000/- in
the written notes of argument.
28. The accused has submitted that, the cheque amount is of
Rs. 24,00,000/- and as per the case of complainant, she has given Rs.
7,00,000/-. Therefore, it is submitted by the accused that, the cheque
amount is more than the liability and therefore, the complaint needs to
be dismissed. I have perused Section 56 of the Negotiable Instruments
Act 1881 which reads as follows:
Section 56 - endorsement for part of sum due- No writing
on a Negotiable Instrument is valid for the purpose of
negotiations if such writing purports to transfer only a part
of a amount appearing to be due on the instrument; but
where such amount has not been partly paid, a note to that
effect may be endorsed on the instrument, which may then
be negotiated for the balance.
I have also perused the decision of Hon’ble Supreme Court of
India in Dashrathbhai Trikambhai Patel V/s. Hitesh Mahendrabhai Patel
and Anr., 2022 ALL SCR (Cri) 2097, wherein it is held that,
“Under S. 56 read with S.15 of the Act, an endorsement may be
made by recording the part-payment of the debt in the cheque or
in a note appended to the cheque. When such an endorsement is
made, the instrument could still be used to negotiate the balance
amount. If the endorsed cheque when presented for encashment
of the balance amount is dishonoured, then the drawee can take
recourse to the provisions of S. 138. Thus, when a part-payment
of the debt is made after the cheque was drawn under S. 56 of
the Act. The cheque cannot be presented for encashment without
recording the part-payment. If the unedorsed cheque is
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dishonoured on presentation, the offence u/S. 138 would not be
attracted since the cheque does not on presentation, the offence
u/S. 138 would not be attracted since the cheque does not
represent a legally enforceable debt at the time of encashment.”
29. Perusal of the above decision it seems that, on the date of
presentation of cheque for encashment, there must be legally
enforceable debt due from the accused. In the case in hand, as per the
case of complainant, in all she has given Rs. 19,50,000/- to the accused.
As per the written argument of the accused Rs. 19,50,000/- was
invested by the complainant but the cheque amount is of Rs.
24,00,000/-. It is the submission of the advocate for the accused that,
the higher return was not agreed. It means that some return on the said
invested amount was agreed. Ld. advocate for the complainant has
invited my attention towards the promissory note filed at Exh. 40.
Perusal of it seems that, the accused has agreed to pay additional
returns on the amount invested by the complainant. Further
complainant has came with case that amount was invested as per the
proposal of accused to get returns and in the written notes of argument
accused has submitted that profit was agreed but there is no material on
record to show that profit was agreed. The accused himself issued the
cheque for the amount of Rs. 24,00,000/-. Therefore, it cannot be said
that, the cheque was issued for the higher amount than the liability.
30. It is the defence of the accused that, he has taken Rs.
7,00,000/- from the complainant and while receiving the said amount,
he has given some blank signed cheques to the complainant as a
security. On the contrary, Ld. Advocate for the complainant submitted
that, the accused has admitted the liability and therefore the said
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defence is not tenable. He placed reliance in the decision of Hon’ble
Supreme Court of India in the case of APS Forex Services Pvt. Ltd. V/s.
Shakti International Fashion Linkers & Ors, 2020 ALL SCR (Cri) 433.
He also placed reliance in the decision of Hon’ble Bombay High Court in
the case of M/s. Sai Auto Agencies V/s. Sheikh Yusuf Sheikh Umar,
2010 ALL MR (Cri) 1204. I have perused the cited decisions. In the
cross-examination, the accused has put suggestion to the complainant in
respect of security cheques but complainant has denied the suggestion.
I have perused the record and it seems that, nothing has been brought
by the accused on record to show that, these cheques were issued for
security purpose only.
31. 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:-
32. As per contentions and evidence of complainant, the
cheque No. 015502 (Exh. 42) was presented for encashment. However,
the cheque was returned with remark as 'Drawers Signature Differs’. In
support of said contentions, the complainant has examined one bank
witness namely Ravindra Sadanand Nagvekar (C.W.2) at Exh. 76. As
per his evidence, he is working as a branch manager with Yes Bank,
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Four Bungalow Branch, Andheri, Mumbai. He produced account
statement of complainant as per Exh. 79 along with certificate U/s. 2-A
of the Bankers Books of Evidence Act at Exh. 80. He submitted that, as
per entry of account statement, the disputed cheque of this case was
returned unpaid for reason “Signature Mismatch”. Therefore, the
cheque returned memo is proved and it is at Exh. 81.
33. Nothing is brought on record by the accused to rebut the
presumption in respect of bank memo (Exh. 81). After perusal of said
memo, it is seen that the cheque No. 015502 (Exh.42) was dishonored
for reason ‘Drawers Signature Differs’. 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 ‘Drawers Signature Differs’. Consequently,
point No. 2 is answered in the “affirmative”.
As to Point Nos. 3 and 4 :-
34. As per evidence of complainant (C.W.1), after dishonor of
cheque of (Exh. 42), she issued demand notice dated 24/07/2018
(Exh.43). The complainant has filed postal receipt at Exh. 44 to show
that, the notice was issued on the correct address of the accused. In
support of said contention, the complainant produced demand notice
dated 24/07/2018 (Exh. 43) and postal receipt (Exh. 44). Upon perusal
of demand notice (Exh. 43), postal receipt (Exh. 44), it is seen that, the
complainant issued demand notice on 24/07/2018 to the accused and
same was received by the accused. The demand notice was sent on the
following address :-
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21 C. C. NO. 3622/SS/2018
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To,
Mr. Nitin Shamrao Joshi.
M/s. Shreeji Developers,
503, Astoria Building,
Raheja Garden, L.B.S. Road,
Thane (W), Thane – 400 604.
35. Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipt at Exh. 44 that, the said notice
was delivered on the correct address of accused. Therefore, there is no
hurdle to held that complainant 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
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brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of
notice is a clear departure from the rule of Criminal Law, where
there is no stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not receive the
notice sent by post, can, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of summons
(by receiving a copy of complaint with the summons) and,
therefore, the complaint is liable to be rejected. A person who does
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
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Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
36. As already discussed in earlier points, it becomes clear that
the subject cheque (Exh. 42) was dishonored on 26/06/2018 for the
reason of ‘Drawers signature differs’. It is seen from the record that, the
notice (Exh. 43) was posted on 24/07/2018 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
in the “affirmative”.
As to Point No.5 :
37. 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. 81) that the cheque (Exh. 42) was dishonored on
26/06/2018. The notice (Exh. 43) was sent on 24/07/2018 and so, it is
seen to be issued within 30 days of dishonor of cheque (Exh. 42).
Therefore, the accused has to pay cheque amount within fifteen days
from 24/07/2018 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 09/08/2018. The complainant
has to file complaint with 30 days from the day of cause of action. The
complaint was filed on 10/09/2018. 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
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has committed an offence punishable u/s 138 of the Act. Consequently,
point No. 5 is answered in the “affirmative”.
38. In view of my findings recorded herein above on point
No.5, I am taking a pause to hear the accused in person, his advocate.
Both are present. Accused submitted that, minimum sentence may be
awarded. Further, the complainant and her advocate are present. Ld.
advocate for the complainant submitted that, maximum punishment
may be awarded.
39. Admittedly the accused has given sufficient opportunity to
make payment of the cheque from notice of the complainant till
conclusion of trial but accused failed to make it. Therefore, in order to
deter the human tendency to handover cheque without intending to
honour the same, the punishment is required to impose upon the
accused rather than giving benefit of Probation of Offenders Act.
40. 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. 24,00,000/-. In the present matter, on 25/06/2018 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 June 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
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reproduced here and those are as under:
“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
the power to levy fine upto twice the cheque amount
(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.”
41. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding 9
% per annum interest on the cheques amount by way of compensation
to the complainant. If interest on cheque amount (Rs. 24,00,000/-) at
the rate of 9 % p.a. is calculated for the period of 76 months i.e. from
the filing of present complaint (10/09/2018 to 15/01/2025), it comes
to Rs. 13,68,000/-. Cheque amount is Rs. 24,00,000/-. Thus, the
amount of Rs. 37,68,000/- is necessary to give to the complainant as an
compensation.
42. 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 one year will be proper and justified.
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43. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed:
ORDER
1. Accused Mr. Nitin Shamrao Joshi, Age : Adult, is
convicted under Section 255 (2) of the Code of
Criminal Procedure, 1973 for an offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 and sentenced to suffer simple Imprisonment
for one year.
2. Accused is directed to pay compensation Rs.
37,68,000/- (Rs. Thirty Seven Lacs Sixty Eight
Thousand Only) to the complainant within three
months from today, in default to suffer Simple
Imprisonment for one year.
3. Accused to surrender to his bail bond.
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4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
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:- 15/01/2025 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 15/01/2025
Typed On : 15/01/2025
Signed On : 15/01/2025
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