Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 3822/SS/2018
Filed on : 26/09/2018
Registered on : 26/09/2018
Decided on : 01/09/2023
Duration : 05Y. 00M. 05D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 3822/SS/2018
CNR: MHMM190096082018
Exh. No.
Mr. Rameshchandra F. Champaneri.
An Adult, Indian Inhabitant, Aged :83 years,
R/at 13 Boricha Chawl, Shradhanand Road,
Vile Parle (E), Mumbai 400057 …Complainant
Versus
Mr. Vinayak Chandrakant Pawar.
(Partner of M/s. Ashtvinayak Builder
& Developer)
Age About 37 years, Occu : Business
R/at Room No. 9, Chawl No.2,
Jalaram Nagar, Kajupada,
Tulinj Road, Nalasopara (East),
Dist: Palghar: 401209. ..Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Ramlal Kushwah for the complainant
Advocate Mr. Mahesh Kadam for accused.
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JUDGMENT	JUDGMENT
(Delivered on 01/09/2023)
Accused is mired in the trial, for having committed an
offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
(Hereinafter it is referred as 'N. I. Act' in short.)
Bonsai facts of the complaint are as under :
2] It is necessary to note here that, complainant has filed this
complaint against M/s. Ashtavinayak builder and developers as a
accused no. 1 and present accused Mr. Vinayak Pawar has been shown
as a partner of M/s. Ashtavinayak builder and developers. However,
process was not issued against accused no. 1 but it was issued only
against accused no. 2 Mr. Vinayak Pawar. (Hence, hereinafter accused
no. 2 Vinayak Pawar has been referred as a accused) According to
complainant, accused no. 1 is a partnership firm and accused no. 2 was
looking after daytoday affairs of the accused no. 1. It is further case
of complainant that, accused firm is engaged in the business of
construction of buildings. Complainant came across advertisement of
the accused publishing newspaper Gujrat Samachar and on the basis of
said advertisement, he approached to the accused in the month of April
2015 and booked flat no. 202 in the apartment of accused situated at
Nalasopara, Palghar. Complainant paid an amount of Rs. 6,72,000/
being part consideration of the agreed amount against the purchase of
flat.
3] In the month of November 2015, he visited the said flat premises
and at that time he found that, one Mr. Jigar was in the possession of
flat no. 202 of Jay Apartment, Cwing, which was booked by the
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complainant by making payment of Rs. 6,72,000/. Thereafter,
complainant made enquiry with the accused Pawar. However, accused
assured him to give possession of flat no. 205, instead of flat no. 202
but actually he did not give possession of any flat to the complainant.
Finally accused refused to give possession of the flat and in order to
return booking amount of complainant, he issued cheque no. 100240
dated 31/05/2018 for sum of Rs. 1,47,000/ drawn on his account
maintained with Bank of Maharashtra, Nalasopara branch.
4] Complainant presented said cheque with his banker namely
HDFC bank, Vileparle branch Mumbai for encashment. However, said
cheque was dishonoured and returned with bank memo dated
24/08/2018 for a reason “Insufficient Funds”.
5] After dishonoured of cheque, complainant issued statutory
demand notice dated 06/09/2018 through RPAD, calling upon accused
to pay cheque amount. Said notice was duly served upon accused,
however, accused did not pay cheque amount. As amount claimed in
notice, was not paid by the accused, complainant left with no other
option than to knock the door of the court seeking justice and ipso Jure
case came before this court, which was filed on 26/09/2018.
6] After issuance of process, accused appeared and thereafter
substance of accusation was read over to the accused to which accused
pleaded not guilty and opt for trial.
7] In order to prove guilt of accused, complainant examined himself
(C.W. 1) by filing his affidavit in lieu of examinationinchief at Exh. 18,
vide section 145 of the Negotiable Instrument Act. Besides oral
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evidence, complainant has relied upon following documentary evidence
that includes:
Description of documents Exh. No.
Original cheque Exh. 21
Cheque returned memo Exh. 22
Office copy of notice Exh. 23
Postal receipt Exh. 24
8] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 40 wherein accused
has taken a defence of falsely implication.
9] Complainant has filed his written notes of argument at Exh. 41
while accused has filed his written notes of argument at Exh. 43.
10] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of both parties. In view of accusation
and argument of both parties, following points arise for my
determination and I have recorded my findings thereon as follows:
Sr.
No.
Points Findings
1. Does complainant prove that disputed
cheque was issued by the accused, in favour
of complainant for discharging legal
enforceable liability?
…. In the
Affirmative
2. Does complainant prove that cheque was
returned unpaid for reason mentioned in
…. In the
Affirmative
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memo?
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
Affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
…. In the
Affirmative
5. Whether complaint is filed within period of
limitation? .. In the
Affirmative
6. What order ?
.. Accused is
convicted.
REASONS
AS TO POINT NO. 1
11] The accused is roped in the offence punishable u/s. 138 of
the N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
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of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
 The payee or the holder in due course of the cheque makes a
demand for the payment of said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of
the receipt of the information by him from the bank regarding
dishonor of the cheque as unpaid.
 The drawer of the said cheque fails to make payment of said
amount of money to the payee or holder in due course of the
cheque within 15 days from the receipt of the said notice.
 The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
 The drawer of the said cheque failed to rebut the presumption u/s.
118 and 139 of the N.I. Act.
12] Before going further, it is necessary to mention here that, as per
Section 139 of N.I. Act, there is a presumption in favour of holder of
cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
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b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
d) as to time of transfer . that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements. that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
f) as to stamp. that a lost promissory note, bill of exchange or
cheque was duly stamped;
g) that holder is a holder in due course. that the holder of a
negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof, by
means of an offence or fraud, or has been obtained from the
maker or acceptor thereof by means of an offence or fraud, or
for unlawful consideration, the burden of proving that the
holder is a holder in due course lies upon him.
Section 139. Presumption in favour of holder. It shall be
presumed, unless the contrary is proved, that the holder of a
cheque received the cheque, of the nature referred to in Section
138, for the discharge, in whole or in part, of any debt or other
liability.
13] Being cumulative, it is only when all above mentioned
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ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
Section 139 of the said act plays significant role. In view of express
provision of section 139 of N.I. Act a presumption shall be drawn that
the holder of cheque, received the cheque, of the nature referred to in
Section 138 for the discharge of any debt or other liability unless
contrary is proved. Thus, it gives power to court to presume unless
contrary is proved that the holder of cheque received the cheque for
discharge in whole or in part of any debt or other liability. The word
“shall presume” as per Section 4 of Indian Evidence Act means
whenever it is directed by this act, that the court shall presume a fact, it
shall regard such fact as a proved unless and until it is disproved. Thus,
the burden of proof as to cheque has not been issued as a legal debt or
liability is always on accused and it is for him to rebut said
presumption. A useful guidance on the said point can be taken from the
verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
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prove a fact.
14] In order to prove his case, complainant examined himself by
filling his affidavit of examinationinchief at Exh. 18, wherein he has
reiterated his case from the complainant. His evidence shows that, he
had booked flat no. 202, Jay Apartment, Cwing, Nalasopara, with
Ashtavinayak Builders of which accused Vinayak Pawar was the partner.
His evidence further shows that, he had paid an amount of Rs.
6,72,000/ by way of earnest amount against the booking of said flat.
His evidence further shows that, in November 2015 he visited to said
premises and at that time he found that, accused had handed over said
flat to one Mr. Jigar. His evidence further shows that, thereafter
accused Vinayak Pawar promised him to give possession of flat no. 205.
However, he didn't give it. Finally accused canceled said transaction
and in order to repay his amount, issued cheque for an amount of Rs.
1,47,000/.
15] Ld. Advocate for accused has conducted crossexamination of
complainant at length. From perusal of crossexamination it appears
that, accused has taken defence that, he is not the partner of
Ashtavinayak builders and hence he is not at all liable to repay any
amount to the complainant. It is the argument of accused that,
complainant has not paid any amount to the accused Vinayak Pawar
and Mr. Pawar is not at all concerned with the Ashtvinayak Builders and
hence there is no liability of making payment by present accused to the
complainant.
16] I have gone through crossexamination of complainant. In cross
examination complainant has admitted that, he doesn't know how many
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partners are there in the partnership firm of accused. He further
admitted that, he doesn't have any documentary evidence about the
legal status of M/s. Ashtavinayak Builders. He further answered that,
he is not aware that, Mr. Vinayak Pawar is not the partner of
Ashtavinayak builders and developers. He further stated that, he had
given an amount of Rs. 6,72,000/ to the accused through cheque but
he has not produced any document on record to show that, said amount
has been credited in the account of accused. He further admitted that,
accused Mr. Vinayak Pawar has not issued any receipt in his favour. He
further admitted that, in complaint or affidavit, he has not mentioned
about total consideration of the disputed flat. His evidence further
shows that, when he visited at the site, at that time Mr. Vinayak Pawar
and Ganesh Patil were present there. He further stated that, out of an
amount of Rs. 6,72,000/ paid by him, Mr. Ganesh Patil has repaid an
amount of Rs. 2,00,000/ to him through cheque. He was questioned
as to why Mr. Patil has paid amount to him, to that he replied that, may
be accused from this case Mr. Pawar had given amount to Mr. Patil and
therefore Mr. Patil has given an amount of Rs. 2,00,000/ to him. He
further stated that, he had given cheque of Rs. 1,51,000/ to the
accused without mentioning name of payee. According to him, total
consideration decided between the parties for disputed flat was Rs.
24,00,000/. He further admitted that, out of Rs. 6,72,000/ he has
received back Rs. 2,00,000/ from Mr. Ganesh Patil and Rs. 3,25,000/
from Mr. Rakesh Jain as such an amount of Rs. 5,25,000/ has been
received by him. He further admitted that, he had not booked flat with
accused no. 2 but it was booked with Ashtavinayak builders, but so far
as amount is concerned, he specifically stated that he had given said
amount to the accused from this case. In crossexamination he has
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clearly stated that disputed cheque was handed over to him by accused
Vinayak Pawar.
17] Ld. Advocate for accused has argued that, complainant had
booked his flat with Ashtavinayak Builders and therefore accused is not
liable to repay any amount to him. It is necessary to mention here that,
in the case at hand, disputed cheque has been drawn from the
individual account of accused Vinayak Pawar and not from the account
of Ashtavinayak builders. Accused has come before court with clear
case that he has paid entire amount to Mr. Vinayak Pawar. No
agreement was executed between the complainant and Ashtavinayak
builder. Therefore, contention of accused that complainant had booked
flat with Ashtavinayak developers and hence accused is not liable to pay
the cheque amount is not acceptable. Accused did not explain or give
any suggestion as to how disputed cheque of his account came into
possession of complainant. Complainant has clearly stated that,
accused handed over said cheque to him. Therefore, contention of
accused that, in order to repay his balance amount, disputed cheque
was issued by the accused in his favour is appears to be reliable,
acceptable and same is supported by evidence.
18] Ld. Advocate for accused in support of his argument relied upon
judgment passed by Hon'ble Bombay High Court in the case of M/s.
Pinak Bharat & co. V/s. Shri. Anil Naik, 2023 ALL M.R. (Cri) 257
wherein Hon'ble Bombay High Court has held that, cheque issued
without date and without mentioning payee name is filled up by the
complainant unilaterally without consent of accused, amounts to
material alternation and such instrument becomes voids. However, in
the case at hand, accused has failed to show that, he had issued blank
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signed cheque to the complainant and complainant himself without his
consent filled up the date and other details. Therefore, said judgment
of Hon'ble High Court is not helpful to the case of accused.
19] He also relied upon judgment passed by Hon'ble Punjab and
Hariyana High Court from the case of Sunil Kumar V/s. Ramdas
decided on 16/01/2014, wherein Hon'ble High Court has acquitted the
accused on the ground that, complainant has failed to prove existence
of any legal debt or liability and there was no documentary proof about
advancement of loan. In the case at hand, complainant has not given
any loan to the accused but he has booked flat with the complainant.
Admittedly, some amount has been repaid to the complainant.
Suggestions given on the part of accused clearly shows that, it was
transaction of booking of the flat. Therefore, ratio laid down in the said
judgment is not helpful to the accused.
20] In view of above discussion, I have come to the conclusion
that disputed cheque was issued by the accused for discharging legally
enforceable liability. Accused has failed to rebut the presumption u/s.
139 of N.I. Act. In result point no. 1 has answered in the affirmative.
AS TO POINT NO. 2 TO 5
21] In order to prove that cheque was returned unpaid for
reason “Funds Insufficient”, complainant has relied upon his own oral
evidence in addition to documentary evidence i.e. cheque returned
memo filed on record at Exh. 22. Said memo bears seal of the bank
and therefore as per Section 146 of N.I. Act, it is to be presumed that,
cheque was dishonoured for a reason “Funds Insufficient” in the
account of drawer.
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22] In order to show that statutory demand notice was issued to
accused within statutory period, complainant has filed on record office
copy of notice at Exh. 23 and postal receipt at Exh. 24. It is the
argument of accused that, demand notice was not served upon him.
However, record shows that, notice was sent to him by registered post
address. Accused has merely denied service of notice but he has not
denied his address mentioned in the demand notice. Besides that,
Hon'ble Supreme Court in the case of C.C. Alavi Haji V/s. Palapetty
Muhammed decided in criminal appeal no. 767/2007 dated
18/05/2007 has observed as under:
The question as to whether the service of notice has been fraudulently
refused by unscrupulous means is a question of fact to be decided on the
basis of evidence. In such a case the High Court ought not to exercise its
jurisdiction under Section 482 of the Code of Criminal Procedure
10. It is, thus, trite to say that where the payee dispatches the notice by
registered post with correct address of the drawer of the cheque, the
principle incorporated in Section 27 of the G.C. Act would be attracted;
the requirement of Clause (b) of proviso to Section 138 of the Act stands
complied with and cause of action to file a complaint arises on the expiry
of the period prescribed in Clause (c) of the said proviso for payment by
the drawer of the cheque. Nevertheless, it would be without prejudice to
the right of the drawer to show that he had no knowledge that the notice
was brought to his address.
11. However, the Referring Bench was of the view that this Court in Vinod
Shivappas case (supra) did not take note of Section 114 of Evidence Act in
its proper perspective. It felt that the presumption under Section 114 of the
Evidence Act being a rebuttable presumption, the complaint should contain
necessary averments to raise the presumption of service of notice; that it was
not sufficient for a complainant to state that a notice was sent by registered
post and that the notice was returned with the endorsement out of station;
and that there should be a further averment that the addresseedrawer had
deliberately avoided receiving the notice or that the addressee had
knowledge of the notice, for raising a presumption under Section 114 of
Evidence Act.
12. Therefore, the moot question requiring consideration is in regard to the
implication of Section 114 of the Indian Evidence Act, 1872 insofar as the
service of notice under the said proviso is concerned. Section 114 of the
Indian Evidence Act, 1872 reads as follows:
Section 114 Court may presume existence of certain facts. The Court may
presume the existence of any fact which it thinks likely to have happened.
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regard being had to the common course of natural events human conduct
and public and private business, in their relation to the facts of the particular
case. Illustrations The Court may presume
(f) That the common course of business has been followed in particular cases;
13. According to Section 114 of the Act, read with illustration
(f) thereunder, when it appears to the Court that the common course of
business renders it probable that a thing would happen, the Court may
draw presumption that the thing would have happened, unless there
are circumstances in a particular case to show that the common course
of business was not followed. Thus, Section 114 enables the Court to
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events,
human conduct and public and private business in their relation to the
facts of the particular case. Consequently, the court can presume that
the common course of business has been followed in particular cases.
When applied to communications sent by post, Section 114 enables the
Court to presume that in the common course of natural events, the
communication would have been delivered at the address of the
addressee. But the presumption that is raised under Section 27 of the
G.C. Act is a far stronger presumption. Further, while Section 114 of
Evidence Act refers to a general presumption, Section 27 refers to a
specific presumption. For the sake of ready reference, Section 27 of
G.C. Act is extracted below:
27. Meaning of service by post.
Where any Central Act or Regulation made after the commencement of
this Act authorizes or requires any document to be served by post,
whether the expression serve or either of the expressions give or send or
any other expression is used, then, unless a different intention appears,
the service shall be deemed to be effected by properly addressing, pre
paying and posting by registered post, a letter containing the document,
and, unless the contrary is proved, to have been effected at the time at
which the letter would be delivered in the ordinary course of post.
14. Section 27 gives rise to a presumption that service of notice has been
effected when it is sent to the correct address by registered post. In view
of the said presumption, when stating that a notice has been sent by
registered post to the address of the drawer, it is unnecessary to further
aver in the complaint that in spite of the return of the notice unserved, it
is deemed to have been served or that the addressee is deemed to have
knowledge of the notice. Unless and until the contrary is proved by the
addressee, service of notice is deemed to have been effected at the time
at which the letter would have been delivered in the ordinary course of
business. This Court has already held that when a notice is sent by
registered post and is returned with a postal endorsement refused or not
available in the house or house locked or shop closed or addressee not in
station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu
Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs.
P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the
presumption available under Section 27 of the Act, it is not necessary to
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aver in the complaint under Section 138 of the Act that service of notice
was evaded by the accused or that the accused had a role to play in the
return of the notice unserved.
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
emphasis 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.
16. As noticed above, the entire purpose of requiring a notice is to give
an opportunity to the drawer to pay the cheque amount within 15 days
of service of notice and thereby free himself from the penal
consequences of Section 138. In Vinod Shivappa (supra), this Court
observed: One can also conceive of cases where a well intentioned
drawer may have inadvertently missed to make necessary arrangements
for reasons beyond his control, even though he genuinely intended to
honour the cheque drawn by him. The law treats such lapses induced by
inadvertence or negligence to be pardonable, provided the drawer after
notice makes amends and pays the amount within the prescribed period.
It is for this reason that Clause (c) of proviso to Section 138 provides
that the section shall not apply unless the drawer of the cheque fails to
make the payment within 15 days of the receipt of the said notice. To
repeat, the proviso is meant to protect honest drawers whose cheques
may have been dishonoured for the fault of others, or who may have
genuinely wanted to fulfill their promise but on account of inadvertence
or negligence failed to make necessary arrangements for the payment of
the cheque. The proviso is not meant to protect unscrupulous drawers
who never intended to honour the cheques issued by them, it being a
part of their modus operandi to cheat unsuspecting persons.
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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.
23] In the case at hand also, even after service of summons accused
has not shown readiness to pay cheque amount. Hence, said defence of
nonservice of demand notice is not available to him. It remains proved
that, notice sent by registered post was duly served on accused.
Admittedly, accused has not paid cheque amount to the complainant. It
is a matter of record that, complainant has filed this complaint on
26/09/2018 and same is within limitation. In result, point no. 2 to 5
are answered in the affirmative.
Hearing on the point of sentence:
24] I explained to accused that, he is held guilty for the
offence of the dishonor of cheque and that the N.I. Act has provided
punishment to the offence of imprisonment upto two years and fine
upto twice of the cheque amount. Thereafter, I asked the accused to
clarify his stand on the nature and quantum of the sentence, if any.
25] Upon asking on the point of sentence, accused submitted that, he
is the suffering from leg injury and he is a only earning member of his
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family. Hence, prayed for leniency. On the other hand, Ld. Advocate
for complainant has prayed to give directions to accused to pay
maximum compensation to the complainant. He further submitted that,
complainant is senior citizen and deprived from his amount since 2018.
26] Heard both parties at length on the point of sentence.
Considering nature of offence, the period since which case is pending,
conduct of the accused as well as other circumstances and considering
purpose of legislature behind enactment of Section 138 of N.I. Act,
accused should be sentenced to imprisonment along with suitable
compensation to the complainant. In result, I proceed to pass following
order :
ORDER
i. The accused Mr. Vinayak Chandrakant Pawar is hereby convicted
for the offence punishable under section 138 of the Negotiable
Instrument Act, 1881 vide section 255(2) of the Code of Criminal
Procedure, 1973.
ii. Accused is hereby sentenced to suffer simple imprisonment for
period of Six months and he shall pay compensation of Rs.2,25,000/
(Rs. Two Lacs Twenty Five Thousand Only) to the complainant, vide
Section 357(3) of the Code of Criminal Procedure. Accused shall pay
above amount of compensation within two months from today, in
default of payment of compensation, accused shall suffer simple
imprisonment for the period of one month.
iii. The amount of compensation realized from the accused, shall be
paid to the complainant, subject to expiry of the appeal period or the
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18 C. C. No. 3822/SS/2018
orders of Honourable Appellate Court (if any).
iv. Accused to surrender his bail bonds.
v. No question of setoff under section 428 of the Code of Criminal
Procedure, 1973, as the accused has not spent any period in the custody
during the trial.
vi. The copy of this Judgment be provided free of cost to the
accused, immediately after it is prepared, in view of section 363(1) of
the Code of Criminal Procedure, 1973.
vii. Accused is informed about having his right to prefer appeal
against this judgment within a statutory period before Hon'ble Sessions
Court.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 01/09/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 01/09/2023
Typed On : 01/09/2023
Signed On : 01/09/2023
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