Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.3615/SS/2018-Judgment
Filed on : 07/09/2018
Registered on : 07/09/2018
Decided on : 31/08/2024
Duration : 05Y. 11M. 24D.
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS), ANDHERI
(Court No.48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No.3615/SS/2018
CNR No.MHMM19-009475-2018
Exh.
Umita Rajaram Sakpal
Aged about 45 years, Occu :
Adult, Indian Inhabitant of
Residing at Room NO.15,
MHADA Chawl No.11, Four Bungalows,
Opp. RTO Link Road, Andheri (W),
Mumbai-53. -- Complainant
Versus
Ashok Bheemrao
Proprietor of M/s. A.R. Constructions
Residing at Flat No.104, B-Wing,
Diamond Building, Behram Baug,
Jogeshwari (W), Mumbai-400 102. -- Accused
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2 C. C. No.3615/SS/2018-Judgment
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Advocate for the complainant : Vijay Kumar
Advocate for the accused : Bimlesh Singh
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JUDGMENT
(Delivered on 31/08/2024)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“N.I Act” for short) for dishonor of a cheque of Rs. 10,00,000/-.
The brief facts of complainant's case are as under:
2] It is averred by the complainant that, the accused has
represented that he is owner of flat No.19/1, ground floor, Surya Kiran
Co-operative Housing Society Limited, Andheri (W), Mumbai. As per
leave and license agreement dated 28/11/2016 the accused has given
the said premises to complainant and her brother Umesh Sakpal for the
period of 24 months i.e. 05/12/2016 to 04/12/2018. Complainant and
Umesh Sakpal have given security deposit of Rs.24,00,000/- to accused.
The accused had not disclosed the fact that the said premises was
mortgaged with Punjab National Bank and on 26/03/2018 the bank has
sealed the said premises by preparing panchanama.
3] The complainant further submitted that, the accused for
the discharge of his liability, issued a cheque bearing No.039503 dated
13/05/2018 for Rs.10,00,000/- drawn on the Allahabad Bank, Andheri
(W), Mumbai to the complainant. Thereafter, the complainant deposited
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the above said cheque for encashment in his Bank of Maharashtra,
Oshiwara, Mumbai. The same was returned unpaid from drawee bank
with endorsement of 'Exceeds Arrangement'. Accordingly, the Federal
Bank Ltd. issued memo dated 16/07/2018. Thereafter, she contacted
the accused and requested to pay cheque amount but the accused
intentionally not paid said amount. Thereafter, complainant issued
demand notice dated 20/07/2018 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.
4] 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.10 which
were read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
5] The complainant has closed her evidence by filling
evidence close pursis below Exh.23 and thereafter the matter was kept
for the statement of accused U/s. 313 of the Code of Criminal
Procedure, 1972 (in short 'the Code').
6] The statement of accused under Section 313 of the Code
was recorded vide Exh.33. In his statement U/s. 313 of the Code,
accused submitted that, the cheque was issued for security purpose.
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4 C. C. No.3615/SS/2018-Judgment
7] Heard Ld. Counsel Mr. Vijay Kumar for complainant and
learned counsel Mr. Bimlesh Singh for accused. Also perused written
notes of arguments of complainant and accused filed at Exh. 44 and
43.
8] From perusal of complaint and defence of 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.039503 (Exh.13) 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 Arrangement”?
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 Instrument Act ?
Yes
6. What order? The accused
is convicted.
9] In order to prove the case, the complainant has filed her
evidence affidavit at Exh.07. The complainant also placed her reliance
upon following documents:
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Description of documents Exh. No.
Certified copy of leave and license agreement
executed between Complainant and accused
Exh.11
Account Statement Exh.12
Panchanama Exh.25
Copy of cheque No.039503 Exh.13
Cheque returned memo Exh.14
Postal receipts Exh.15 and 16
A. D. Card Exh.17 and 18
Office copy of notice Exh.19
Accused has also examined himself at (Exh.38).
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 per her
evidence, the accused has lent the premises to her and her brother
namely Umesh Sakpal as per Leave and License dated 28/11/2016 for
the period of 24 months i.e 05/12/2016 to 04/12/2018. She and her
brother Umesh have given security deposit of Rs.24,00,000/- to the
accused. The accused has suppressed the fact that the premises was
mortgaged with Punjab National Bank and on 26/03/2018 the bank has
sealed the premises by panchanama.
11] It has further came in the evidence of complainant that, the
accused for the discharge of his liability, issued a cheque bearing
No.039503 dated 13/05/2018 for Rs.10,00,000/- drawn on the
Allahabad Bank, Andheri (W), Mumbai to the complainant. The same
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was returned unpaid from drawee bank with an endorsement “Exceeds
Arrangement”.
12] The accused has conducted the cross-examination of the
complainant and he has taken following defences:
a) the agreement period is not completed and the
complainant has not given prior notice before vacating the
premises as agreed ;
b) the cheque was given as security and the complainant
has misused the same.
13] Before adverting towards the merit of case, it is necessary
to deal with some legal principles 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, accused has
not sent reply to the demand notice of complainant. In the cross-
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examination also the accused has not denied his signature on the
cheque (Exh.13). Therefore, it can be gathered that, accused has not
challenged the signature from cheque (Exh.13). This shows that, the
signature of accused from cheque (Exh.13) is not in dispute. Therefore,
the presumptions under Section 118 and 138 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 is laid down the procedure as to
how the accused can rebut the presumption under Section118 and 139
of the Act,
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“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
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
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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] As accused has not challenged his signature on the cheque
(Exh.13), the presumptions under Section 118 and 139 of the Act are
raised in favor of complainant. Therefore, in view of the observations
given in case of Rangappa V/s. Sri Mohan (Cited Supra), the accused
has to raise a probable defence which creates doubts about the
existence of a legally enforceable debt or liability and the prosecution
can fail. It also makes clear that, mere denial is not sufficient to rebut
the presumption which is raised in favor of complainant. As observed in
the case of
Vishnu Vs. State of Maharashtra (cited supra), accused has
many modes to bring on record his defence e.g. by replying upon
notice, complaint, complainant's evidence and also by mode of cross
examination, his own testimony or of other witnesses, if cross examined
and also through statement of accused recorded under section 313 of
the Code.
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19] In the present case, the accused has submitted that as per
leave and license agreement, the complainant has to issue one month
prior notice before termination of the agreement. Learned counsel for
the accused has submitted that as per clause No.20 of the leave and
license agreement the complainant has to send one month prior notice
to the accused before termination of the agreement, but the
complainant did not sent any notice to the accused. As per his
submission, the complainant has violated the terms of agreement. On
the contrary, learned counsel for complainant submitted that accused
has suppressed the material fact that the premises was mortgaged with
Punjab National Bank and on 26/03/2018 the bank has sealed the
premises by preparing panchanama.
20] I have perused the leave and license agreement filed at
(Exh.11). The said leave and license agreement was executed between
accused, complainant and one Umesh Rajaram Sakpal. I have perused
the said leave and license agreement and it seems that the period of
said agreement was of 24 months i.e. 05/12/2016 to 04/12/2018. I
have also perused the clause No.20 of the said agreement which reads
as follows :
“Both the licenser and licensee shall have an option to
terminate the agreement by giving one month notice in writing
to the other party to show their intention to do so.”
21] The clause No.20 of the agreement clearly discloses that
the party who intends to terminate the agreement is required to send
one month prior notice to other party. But, in the case in hand, the
submission of the complainant is also required to be considered. As per
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the submission of the complainant the said premises was mortgaged by
that accused with Punjab National Bank and Punjab National Bank has
sealed the premises on 26/03/2018. I have perused the panchanama
(Exh.25) and inventory at (Exh.39). Perusal of both these documents, it
seems that the Court Commissioner was appointed by the Hon’ble Addl.
Chief Metropolitan Magistrate, Esplanade, Mumbai vide order dated
03/02/2018 in CC No.605/SA/2017, the panchanama at (Exh.25) was
prepared. Therefore, it become crystal clear that the premises was
sealed by the bank. Therefore, as per my view the clause No.20 of the
agreement at (Exh.11) does not come into picture.
22] Ld. counsel for the accused has submitted that as per the
agreement of leave and license the security deposit has to be refunded
after completion of the period mentioned in the agreement. It is his
submission that the period was not completed and therefore, the
accused is not liable to repay the amount. As I already discussed above
the Punjab National Bank has sealed the premises before completion of
agreement period, and therefore, no question of completion of
agreement period arise.
23] Ld. Counsel for the accused has raised another defence that
the agreement of leave and license at (Exh.11) was executed in between
accused, complainant and Umesh Rajaram Sakpal and the present
cheque is in favour of complainant only. In other words, the ld. Counsel
for the accused submitted that as per the agreement of leave and
license, security deposit of Rs.24,00,000/- was given by complainant
and her brother Umesh Sakpal and the present complaint is only filed
by the complainant. In the agreement of leave and license it is nowhere
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mentioned that who has deposited, how much amount. He invited my
attention towards the cross-examination of complainant wherein the
following questions was asked to the complainant :
Question : an amount of Rs.24,00,000/- claimed by you to be
given by accused was not given by you alone ?
Answer : I had given Rs.10,00,000/- through cheque and my
brother had transferred Rs.14,00,000/- in the account of accused
through RTGS.
24] The complainant has answered that she has paid
Rs.10,00,000/- by cheque and her brother Umesh has paid
Rs.14,00,000/- through RTGS. It is admitted fact that said bifurcation
of amount is not mentioned in the agreement of leave and license. ld.
Counsel for complainant has invited my attention towards the bank
statement of complainant which is filed at (Exh.12). I have minutely
perused the bank statement at (Exh.12) and it seems that as per cheque
No.12079 dated 15/12/2016 an amount of Rs.10,00,000/- was
transferred to accused Ashok Bhimrao. Therefore, it become crystal
clear that the complainant had paid Rs.10,00,000/- to the accused by
cheque towards the security deposit. Further in oral argument, both the
parties have admitted that the brother of complainant namely Umesh
has also filed complaint against the present accused for another
dishonour of cheque of Rs.14,0,0000/-.
25] The accused has examined himself at (Exh.30) and his
evidence he submitted that the leave and license agreement was
executed between him, complainant and one Umesh Sakpal and as per
said leave and license agreement, the complainant has not given notice
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prior to termination of agreement. The cheque was given to the
complainant at the time of execution of agreement of leave and license
as a security. ld. Counsel for the complainant has conducted the cross-
examination of this witness wherein he admitted that he has received
an amount of Rs.24,00,000/- by way of security deposit as mentioned in
agreement at (Exh.11). He also admitted that till today he has not
repaid the said security amount of Rs.24,00,000/-.
26] Ld. Counsel for the accused submitted that disputed cheque
was given by accused as security at the time of execution of agreement
of leave and license. He placed reliance on the decision of the Hon’ble
Supreme Court of India in the case of Dashrathbhai Trimbakbhai Patel V.
Hitesh Mahendrabhai Patel AIR (SC) 2022 Page 4961. I have minutely
perused the cited decision. In the case in hand, I have perused entire
evidence brought on record by both the parties and it seems that
nothing has been brought on record to show that cheque was given for
security.
27] Perusal of above discussion, it seems that the accused has
not rebutted the presumption available in favour of complainant. Per-
contra, in the evidence of complainant, it has came on record that, she
has paid Rs.10,00,000/- as a security deposit. 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”.
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As to Point No.2:-
28] As per contentions and evidence of complainant, the
cheque No.039503 (Exh.13) was presented for encashment. However,
the cheque was returned with remark as 'Exceeds Arrangement’. In
support of said contentions, the complainant produced the cheque
return bank memo of Bank of Maharashtra (Exh.14). Ld. Counsel for
the accused submitted that the complainant has produced the
photocopy of the memo. As per his submission the photocopy cannotbe
read in evidence. He also submitted that primary evidence should be
filed by the complainant. He placed reliance on the decision of the
Hon’ble Bombay High Court in Muntaz Ahmad V. Mainnoddin ALL MR
(Cri.) 2009 Page 834. he also placed reliance on the decision of the
Hon’ble Bombay High Court in Om Prakash Berlia V Unit Trust of India
AIR (Bom.) 1983 Page 1. Perusal of the above cited decision, it makes
clear that the primary evidence has to be produced on record. In the
case in hand I have perused the bank memo filed at (Exh.14) and it
seems that it bears seal and signature of the bank. It is seen from the
bank memo (Exh.14) that, the cheque was returned with endorsement
'Exceeds Arrangement'. Therefore, here it is necessary to mention
section 146 of the Negotiable Instrument 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”.
29] So, as per the aforesaid provision, the bank memo
(Exh.14), 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
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bank memo (Exh.14). After perusal of said memo, it is seen that the
cheque No.039503 (Exh.13) was dishonored for reason 'Exceeds
Arrangement'. However, nothing brought by the accused on record to
show his bonafide as well as also to show that at the relevant time, the
amount mentioned in the cheque was pending in his account. Hence, no
hurdle to held that the cheque was dishonor with reason 'Exceeds
Arrangement'. Consequently, point No.2 is answered in the
“affirmative”.
As to Point Nos. 3 and 4 :-
30] As per evidence of complainant, after dishonor of cheque of
Rs.10,00,000/- (Exh.13), she issued demand notice dated 20/07/2018
(Exh.19). The complainant has filed postal receipts at (Exh.15 and 16)
to show that, the notice was issued on the correct address of the
accused. Complainant further filed the AD Card at (Exh.17 and 18). In
support of said contention, the complainant produced demand notice
dated 20/07/2018 (Exh.19), postal receipt (Exh.15 and 16) and postal
A.D. cards (Exh.17 and 18). Ld. Counsel for the accused submitted that
the complainant has produced the photocopy of demand notice. As per
his submission the photocopy can not be read in evidence. He also
submitted that primary evidence should be filed by the complainant. He
placed reliance on the decision of Muntaz Ahmad’s case (
cited supra)
and also placed reliance on the decision of Om Prakash Berlia’s case
(
cited supra). In the case in hand, have perused the demand notice
filed at (Exh.19) and it seems that it bears signature of counsel for the
complainant. Upon perusal of demand notice (Exh.19) and postal
receipt (Exh.15 and 16) it is seen that, the complainant issued notice
on 23/07/2018 to the accused on the following address :-
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To,
Ashok Bheem Rao,
R/at: Flat No.104, B-Wing,
Diamond Building, Behram bag,
Jogeshwari West, Mumbai-400 102.
31] Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipts at (Exh.15 and 16) that, the
said notice was sent on the correct address. The accused has admitted
in his cross-examination that the AD Card (Exh.17) bears signature of
his daughter Nandini. 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
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
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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 the 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.
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32] As already discussed in earlier points, it becomes clear that
the subject cheque (Exh.13) was dishonored on 16/07/2018 for the
reason of 'Exceeds Arrangement'. It is seen from the record that, the
notice (Exh.19) was posted on 23/07/2018 to the accused and so, it is
seen to be sent within 30 days of dishonor of cheque. As per A.D. card,
notice is served to the accused on 25/07/2018. 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 :
33] 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.14) that the cheque (Exh.13) was dishonored on
16/07/2018. The notice (Exh.19) was sent on 23/07/2018 and so, it is
seen to be issued within 30 days of dishonor of cheque (Exh.13).
Therefore, the accused has to pay cheque amount within fifteen days
from 25/08/2018 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 11/09/2018. The complainant
has to file complaint within 30 days from the day of cause of action. The
complaint was filed on 07/09/2018. 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”.
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19 C. C. No.3615/SS/2018-Judgment
34] 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
but accused and his Counsel are present. Further the complainant and
her Counsel are present. ld. Counsel for accused submitted that
minimum sentence may be awarded. Learned counsel for complainant
has prayed for maximum punishment.
35] 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.
36] The object of the Act is to enhance the credibility of the
negotiable instruments. The cheque involved in the case in hand is
Rs.10,00,000/-. In the present matter, on 16/07/2018, 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 August 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
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20 C. C. No.3615/SS/2018-Judgment
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.”
37] After going through above guidelines issued by the 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 amount (Rs.10,00,000/-) at
the rate of 9 % p.a. is calculated for the period of 71 months i.e. from
the filing of present complaint (07/09/2018 to 31/08/2024), it comes
to Rs.5,32,500/-. Cheque amount is Rs.10,00,000/-. Thus, the amount
of Rs.15,32,500/- is necessary to give to the complainant as an
compensation.
38] 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
cheque, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for six months will be proper and justified.
39] The Hon'ble Supreme Court of India in the case of
Sugandhi Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681,
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21 C. C. No.3615/SS/2018-Judgment
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. Ashok Bheemrao proprietor of M/s. A.K.
Construction 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 six months.
2. Accused is directed to pay compensation of
Rs.15,32,500/- (Rs. Fifteen Lac Thirty Two Thousand
Five Hundred Only) to the complainant within three
months from today, in default to suffer Simple
Imprisonment for nine months.
3. Accused to surrender to his bail bond.
4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
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22 C. C. No.3615/SS/2018-Judgment
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 supplied 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.
Sd/-
Mumbai (Y. P. Pujari)
Dt. 31/08/2024 Judicial Magistrate First Class
48th Court, Andheri, Mumbai.
Dictated On : 31/08/2024
Typed On : 31/08/2024
Signed On : 31/08/2024
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