Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 3731/SS/2018
Filed on : 18/09/2018
Registered on : 18/09/2018
Decided on : 10/05/2024
Duration : 05Y.07M. 22D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 3731/SS/2018
CNR: MHMM190104472018
Exh. No.
Mr. Diwakar Dwivedi.
Aged 68 years, Indian Inhabitant,
Residing at Room No. 2,
Chandraudaya, Mahakali Caves Road,
Andheri (E), Mumbai – 400 093. …Complainant
Versus
1. Curio Finance and Investment Pvt. Ltd.
2. Mr. Manan Jabbar Shaikh. Director
3. Mr. Aftab Shaikh. Director.
Having their registered office at 12, Minar Tower,
Behind Aqsa Bakery, S. V. Road, Jogeshwari (W),
Mumbai – 400 102. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Dhiraj Dwivedi for complainant.
Advocate Mr. Srinivas Singh for accused.
JUDGMENT	JUDGMENT
(Delivered on 10/05/2024)
Accused are mired in the trial, for having committed an
offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
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(Hereinafter it is referred as 'N. I. Act' in short.)
Bonsai facts of the complaint are as under :
2] It is the case of complainant that he is an practicing
advocate and accused are his clients. Accused no. 1 is a registered
company while accused no. 2 and 3 are its directors, who are
responsible for daytoday activity of accused no. 1. On request of
accused, complainant gave an amount of Rs. 5 lacs to the accused in
presence of Mr. K. R. Tiwari. Receipt was prepared to that effect and it
is signed by accused no. 2. Complainant was in search of flat for the
purpose of his residence and it was within the knowledge of accused.
Accused promised to give two flats in Neel Laxmi Co.Operative Housing
Society, situated at VileParle, Mumbai. However, accused did not give
flat to complainant and finally to repay his amount issued cheque no.
000673 dated 10/04/2018 for an amount of Rs. 5,00,000/ drawn on
Bank of Baroda, Oshiwara Link Road branch. Complainant presented
said cheque for clearance, however vide memo dated 07/07/2018, said
cheque returned unpaid with remark “Funds Insufficient”.
3] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 04/08/2018. Notice was returned with
remark “Left”. However, it was deemed service as per provisions of law.
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
18.09.2018.
4] 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.
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5] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 16, vide
section 145 of the Negotiable Instrument Act. Complainant also got
examined Mr. R. K. Tiwari (C.W. 2) by filing his affidavit at Exh. 33.
Besides oral evidence, complainant has relied upon following
documentary evidence that includes:
Description of documents Exh. No.
Copy of receipt ArticleA.
Original cheque Exh. 21
Cheque returned memo Exh. 22
Office copy of notice Exh. 23
Postal receipt Exh. 24 to 26
Returned envelope Exh. 27 to 29
Notice from envelope Exh. 30
6] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 42 and 43, wherein
accused have denied case of prosecution in toto.
7] Heard Ld. Advocate for both parties and perused the written
notes of argument. In view of accusation and argument, 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
…. In the
Negative
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enforceable liability?
2. Does complainant prove that cheque was
returned unpaid for reason “Funds
Insufficient”?
…. In the
Affirmative
3. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding cheque
amount ?
…. In the
Affirmative
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheque amount to complainant within
statutory limit?
.. In the
Affirmative
5. Whether complaint is filed within period of
limitation?
In the
Affirmative
6. What order ?
.. Accused are
Acquitted
REASONS
Admitted/undisputed fact
8] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque has been drawn from the
account of Evergreen Infrastructure, which is not made party to said
proceeding.
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AS TO POINT NO. 1
9] The accused are roped in the offence punishable u/s. 138
of the N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
 The payee or the holder in due course of the cheque makes a
demand for the payment of said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of
the receipt of the information by him from the bank regarding
dishonor of the cheque as unpaid.
 The drawer of the said cheque fails to make payment of said
amount of money to the payee or holder in due course of the
cheque within 15 days from the receipt of the said notice.
 The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
 The drawer of the said cheque failed to rebut the presumption u/s.
118 and 139 of the N.I. Act.
10] 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
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cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
d) as to time of transfer . that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements. that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
f) as to stamp. that a lost promissory note, bill of exchange or
cheque was duly stamped;
g) that holder is a holder in due course. that the holder of a
negotiable instrument is a holder in due course:
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
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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.
11] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
Section 139 of the said act plays significant role. In view of express
provision of section 139 of N.I. Act a presumption shall be drawn that
the holder of cheque, received the cheque, of the nature referred to in
Section 138 for the discharge of any debt or other liability unless
contrary is proved. Thus, it gives power to court to presume unless
contrary is proved that the holder of cheque received the cheque for
discharge in whole or in part of any debt or other liability. The word
“shall presume” as per Section 4 of Indian Evidence Act means
whenever it is directed by this act, that the court shall presume a fact, it
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
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verdict delivered by Hon'ble Supreme Court in the case of Goa Plast
Pvt. Ltd. V/s .Chico D'souza (2004 SCC (cri) 499) wherein the court
has considered the object behind section 138 and 139 of the N.I. Act
and held that the entire burden is on accused to show that cheque was
not issued for any debt or liability as mentioned in the complaint.
Hon'ble Court has further held that presumption u/s. 139 is a rebuttable
and it can be rebutted on the basis of evidence brought by the
complainant or by leading his own evidence. The standard of proof for
rebutting the presumption is preponderance of probabilities which is a
standard applicable to the accused whenever accused is required to
prove a fact.
12] In order to prove his case, complainant examined himself(C.W.1)
by filing his affidavit of examinationinchief at Exh. 16, wherein he has
reiterated case from the complaint. His evidence shows that, he had
given an amount of Rs. 5,00,000/ to the accused and accused had
promised to give flat to him. His evidence further shows that, accused
did not give flat and hence to reopay his amount, disputed cheque was
issued. It has come in the evidence of Mr. K. R. Tiwari, (C.W.2) that, in
his presence complainant had given an amount of Rs. 5,00,000/ to the
accused. Original receipt executed by the accused No. 2 is produced on
record at Exh. 38.
13] Ld. Advocate for accused conducted crossexamination of
complainant and Mr. Tiwari (C.W. 2) at length. Through cross
examination, accused have taken defence that, accused are not all
concerned with the disputed cheque, same has been drawn on account
of Evergreen Infrastructures. Admittedly, in this case, Evergreen
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Infrastructure is not party. It is also defence of accused that, accused
are not at all involved in this proceeding. In crossexamination of
complainant, it has come on record that, he is not aware that accused
no. 2 and 3 are not the directors of accused no.1. He further admitted
that, disputed cheque is not signed by accused no. 2 and 3. Lateron he
stated that, cheque is signed by accused no. 2 only. Except receipt,
there is no evidence to show that, complainant had given any amount to
the accused no. 2 and 3 personally.
14] Having heard both parties at length and considering evidence on
record, it appears that, as per case of complainant, transaction was
taken place between him and accused no. 1 company. Receipt at Exh.
38 is also signed by accused no. 2 on behalf of accused no. 1 company.
However, disputed cheque has been drawn on account of Evergreen
Infrastructure. There is a neither pleading nor evidence to show
connection of present accused with Evergreen Infrastructure. In fact,
there is nothing to show connection of said transaction with Evergreen
Infrastructure. In short, there is absolutely no evidence to show that,
Evergreen Infrastructure was liable to pay any amount to the
complainant. Therefore, it cannot be said that, disputed cheque was
issued for discharging legally enforceable liability. In result, point no. 1
is answered in the Negative.
AS TO POINT NO. 2
15] In order to prove that, disputed cheque was returned
unpaid for reason “Funds Insufficient” in the account of drawer,
complainant examined himself and relied upon cheque return memo
filed at Exh22. Said memo bears seal of the bank and signature of
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bank officer. Therefore, as per section 146 of N.I. Act, it is to be
presumed that cheque was dishonoured for a reason “Funds
Insufficient”. In result point no. 2 is answered in the affirmative.
AS TO POINT NO. 3 TO 5
16] According to complainant demand notice was sent on
04/08/2018. Postal receipts to that effect are produced on record
which shows that, notice was duly dispatch through R.P.A.D. it is not
the case of accused that, notices were not served upon them.
Admittedly, accused have not paid cheque amount to complainant after
service of notice. It is also matter of record that, complainant had filed
this complaint within limitation. In result, point Nos. 3 to 5 are
answered in the Affirmative.
AS TO POINT NO. 6
17] Taking into consideration answer of point No.1, it becomes clear
that complainant has failed to prove that disputed cheque was issued
for discharging legally enforceable liability. Therefore, accused are
entitled for acquittal. In result, I proceed to pass following order:
ORDER
1] Accused No. 1. Curio Finance and Investment Pvt. Ltd.,
accused no. 2. Mr. Manan Jabbar Shaikh. Director, and accused
No. 3. Mr. Aftab Shaikh. Director are hereby acquitted vide
Section 255(1) of Criminal Procedure code for an offence
punishable under Section 138 of the Negotiable Instruments Act.
2] Bail bond of accused stands canceled.
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3] Accused No. 2 and 3 shall execute P.R. Bond of Rs. 15,000/
each, to appear before the Higher Court as and when such court
issues notice in respect of any appeal or petition filed against this
judgment, vide section 437 (A) of the Code of Criminal Procedure.
Said bail bonds shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Sd/
Mumbai (K. G. Sawant)
Dt. 10/05/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 10/05/2024
Typed On : 10/05/2024
Signed On : 10/05/2024
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