Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 3787/SS/2018
Filed on : 21/09/2018
Registered on : 21/09/2018
Decided on : 03/07/2023
Duration : 04Y. 09M. 12D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 3787/SS/2018
CNR: MHMM190109122018
Exh. No.
Shri. Narendra Ramji Patel.
Age : 41 years, Occu : Business
R. No. G168, Madhuban Co. Operative
Housing Society Ltd., T.P. Road,
Near Cosmpolitan School, D. N. Nagar,
Andheri (W), Mumbai 400 058. …Complainant
Versus
Smt. Savita Narottam Solanki.
126, Narsingh Niwas, Room No. 2,
Asta Hospital Compound, J.P.Road,
Andheri (W), Mumbai – 400058. ..Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate G. B. Pawar for the complainant
Advocate Mr. Dilip Davage for accused.
JUDGMENT	JUDGMENT
(Delivered on 03/07/2023)
Accused is mired in the trial, for having committed an
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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 the case of complainant that, in the month of April 2017
accused requested him to give loan and accordingly, on the request of
accused complainant advanced friendly loan of Rs. 14,50,000/ in cash
to the accused. For repayment of said amount, accused issued cheque
bearing no. 005014 dated 09/07/2018 for an amount of Rs.
14,50,000/ drawn from the account of accused maintained with Indian
Bank, Bhawan's campus branch, Mumbai, in favour of complainant.
Complainant presented said cheques for clearance with his banker.
However, vide memo dated 16/07/2018 issued by HDFC Bank, Ltd.,
Mumbai, said cheque returned unpaid for reason “Funds Insufficient” in
the account of drawer.
3] After dishonoured of cheques, complainant issued statutory
demand notice dated 06/08/2018, calling upon accused to pay cheque
amount. Said notice was returned back with remark “Unclaimed” dated
07/08/2018 as a date of intimation given to the accused. Thereafter,
complainant personally went to the accused on 18/08/2018 and in
presence of Shri. Jivan S. Sandha requested the accused to accept
demand notice. However, she refused to accept said notice stating that,
she has already received intimation from the post. 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 21/09/2018.
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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.
5] It is necessary to note here, during pendency of this matter,
original complainant died and hence his son Mr. Narendra Patel was
brought on record as Legal representative of complainant. In order to
prove guilt of accused, complainant filed affidavit of original
complainant Mr. Ramji Patel at Exh. 13 but before conducting cross
examination, he was died and hence thereafter affidavit of Mr.
Narendra Patel was filed on record at Exh. 23. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
Description of documents Exh. No.
Original cheque Exh. 17
Cheque returned memo Exh. 18
Returned postal envelope Exh. 19
Legal notice Exh. 20
6] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 34 wherein accused
has taken a defence of falsely implication.
7] Complainant has filed her written notes of argument at Exh. 35
while accused has filed her written notes of argument at Exh. 36.
8] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of both parties. In view of accusation
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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
Negative
2. Does complainant prove that cheque was
returned unpaid for reason mentioned in
memo?
…. In the
affirmative
3. Does complainant further prove that she 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
acquitted
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
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admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the
account of accused and it bears her signature.
AS TO POINT NO. 1
10] 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
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.
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118 and 139 of the N.I. Act.
11] 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;
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
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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.
12] 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,
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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
prove a fact.
13] In order to prove his case, complainant examined legal
representative of complainant Mr. Narendra Patel (C.W.1) by filing his
affidavit of examinationinchief at Exh. 23 wherein he has reiterated
case from the complaint. His evidence shows that, in the year 2017, his
father Mr. Ramji Patel had given friendly loan of Rs. 14,50,000/ to the
accused in cash and cheque. However, he has not given bifurcation as
to how much amount was given in cash and how much amount was
given through cheque. He further stated that, in order to repay said
amount, disputed cheque for an amount of Rs. 14,50,000/ was issued
by the accused in favour of his father. In support of his evidence,
complainant has produced on record original cheque only.
14] Ld. Advocate for accused conducted crossexamination of
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complainant' representative at length. In crossexamination it has
come on record that, original complainant Mr. Ramji has one son and
four daughters. Complainant has not produced on record heir ship
certificate or succession certificate issued by competent court in his
favour. According to Mr. Narendra (C.W. 1) his father had given loan
to the accused in the year 2018. He further stated that, his father had
informed to him that, out of said loan amount, some payment was given
in cash while remaining amount was given through cheque. However,
he has no knowledge as to how much amount was given in cash and
how much amount was given through cheque. He doesn't know
whether cheque was given bearer or account payee. He was not present
when the transaction took place.
15] It has further come in the evidence of Mr. Narendra that, his
father had informed him that he has given an amount of Rs.
14,50,000/ to the accused. During crossexamination, bank account
statement of original complainant was shown to Mr. Narendra (C.W.1)
and question was put to him as to why in the year 2011 from time to
time amount has been transferred from the account of his father to the
account of Mr. Kanaiyalal, to which said witness replied that, it might
be transferred in order to give loan of Rs. 14,50,000/ to the accused,
since Kanaiyalal and accused Savita were doing the business jointly. He
denied the suggestion that, his father was doing business of Banana. It
has further come on record that, in the year 2012 also, some amount
has been transferred from the account of his father, to the account of
Kanaiyalal.
16] Accused has come before court with specific case that, father of
complainant was engaged in the business of Banana and he used to
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conduct said business from the shop of accused and therefore he was
liable to pay rent to the accused against her room. However, said
suggestion has been denied by Narendra (C.W.1). It is also case of the
accused that, in order to give some amount to Banana Traders, in the
year 2012, father of complainant had obtained the cheque from the
accused in order to give it to Banana Traders, however he did not give it
and lateron misused the same cheque in the year 2018. Said suggestion
given on the part of accused has been denied by Mr. Narendra (C.W. 1).
17] It is necessary to note here, in complaint it has been mentioned
that, complainant had given loan amount to the accused in April 2017.
In crossexamination, Mr. Narendra (C.W.1) has stated that, his father
had given friendly loan to the accused in the month of April 2018. Said
witness has no personal knowledge about the said transaction. He
doesn't know as to how much amount was given by his father to the
accused in cash and how much amount was given through cheque.
When account statement of his father having entries regarding payment
transferred to Mr. Kanaiyalal, was shown to him, he replied that, said
amount might includes in loan amount of Rs. 14,50,000/ given to the
accused. During crossexamination, Ld. Advocate for accused shown 40
Banana receipt/tax invoices of Banana raised in the name of his father
and suggested to witness that his father was engaged in the business of
Banana, however same has been denied by the witness. He also denied
that said cheque was obtained by his father from the accused in the year
2012 in order to give it to Banana traders but said suggestion has also
denied by the witness.
18] Heard Ld. Advocate for both parties and gone through the record.
Admittedly except cheque, there is nothing to show that original
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complainant had advanced loan of Rs. 14,50,000/ to the accused either
in cash or through account transfer. Legal representative of
complainant namely Mr. Narendra Patel (C.W.1) has no personal
knowledge regarding said transaction. He tried to say that, amount
transfer in the account of Mr. Kanaiyalal in the year 2012 might be part
of said transaction. On the other hand, defence of accused that, father
of complainant was engaged in the business of Banana and in order to
pay amount to Banana traders, he had obtained cheque from the
accused in the year 2012 is appears to be probable defence.
19] Here Ld. Advocate for complainant has argued that, in view of
presumption u/s. 139 of N.I. Act, it shall be presumed unless the
contrary is proved that, holder of the cheque has received the cheque of
the nature referred to in Section 138 for the discharge, inhole or part of
any debt or liability. In support of his argument he relied upon
Judgment passed by Hon'ble Supreme Court in the case of Hiten Dalal
V/s. Bratindranath Banerjee(2001)6, Supreme Court cases 16
wherein Hon'ble Supreme Court has discussed about the presumption
u/s. 139 and 118 and held that, it is for the drawer of cheque to rebut
the presumption. Hon'ble Court has further held that, mere explanation
given by the drawer is not sufficient to rebut the presumption. He also
relied upon judgment passed by Hon'ble Supreme Court in the case of
Rangappa V/s. Srimohan wherein in para no. 30 has observed as
under:
“The fact that the accused had made regular payments to the
complainant in relation to the construction of his house does not
preclude the possibility of the complainant having spent his own money
for the same purpose. As per the record of the case, there was a slight
discrepancy in the complainant's version, in so far as it was not clear
whether the accused had asked for a hand loan to meet the
constructionrelated expenses or whether the complainant had incurred
the said expenditure over a period of time. Either way, the complaint
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discloses the prima facie existence of a legally enforceable debt or
liability since the complainant has maintained that his money was used
for the constructionexpenses. Since the accused did admit that the
signature on the cheque was his, the statutory presumption comes into
play and the same has not been rebutted even with regard to the
materials submitted by the complainant. ”
I have gone through ratio laid down by Hon'ble Supreme court in the
above mentioned two judgments, however facts of case at hand is
totally different than that of facts before Hon'ble Supreme Court. In the
case at hand, there is absolutely no evidence about the hand loan of Rs.
14,50,000/. Original complainant could not depose before the court.
Legal representative of complainant has no personal knowledge about
the said transaction. He neither witnesses said transaction nor he
deposed in detail about the loan given by his father to the accused. He
did not produce documentary evidence to prove that, loan was
advanced by his father to the accused though, in his affidavit, he stated
that, said loan was given to the accused in cash and two cheques. Thus,
evidence of Mr. Narendra Patel (C.W.1) is not at all sufficient to prove
that, disputed cheque was issued by the accused in favour of his father
for discharging legally enforceable liability. He did not produce any
evidence to prove that, his father had advanced loan of Rs. 14,50,000/
to the accused in cash. On the contrary defence of accused in relation
to issuance of cheque is appears to be probable. Once, accused come
before court with probable defence, it is for the complainant to prove
that, he had advanced loan to the accused. Certainly, an amount of Rs.
14,50,000/ is not small amount. Nothing has been produced on record
by the complainant as to how said amount was arranged. Said
transaction is not shown in I.T. return. Accused has rebutted
presumption u/s. 139 of N.I. Act. In result, Point no. 1 is answered in
the negative.
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AS TO POINT NO. 2 TO 5
20] In order to prove that cheque was returned unpaid for
reason “Funds Insufficient”, complainant has relied upon oral evidence
of Mr. Narendra Patel (C.W.1) in addition to documentary evidence i.e.
cheque returned memo filed on record at Exh. 18. Said memo bears
seal of the bank and it clearly shows that cheque was returned unpaid
for a reason “Funds Insufficient”. Accused did not lead any evidence to
show that said cheque was not dishonoured as mentioned in memo.
Therefore, as per Section 146 of N.I. Act, it is to be presumed that, said
cheque was dishonoured for the reason “Funds Insufficient” in the
account of accused.
21] It is a matter of record that, cheque was dishonoured vide
memo dated 16/07/2018. In order to show that statutory demand
notice was issued to accused within statutory period, complainant has
filed on record office copy of notice along with postal receipt at Exh. 20.
He has also produced on record returned envelope of notice which
shows that, intimation was given to the accused on 17/8/2018.
Accused did not produce anything on record to show that, address
mentioned on the envelope of notice is incorrect address. Therefore, in
view of section 27 of General Clauses Act r/w. Section 114 of Evidence
Act, it is to be presumed that, demand notice was duly served upon
accused on 07/08/2018. Admittedly, accused did not pay cheque
amount to the complainant after service of notice. Complainant has
filed this complaint on 21/09/2018 which is within limitation given by
the law. In result, Point no. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
22] Taking into consideration answer of points No. 1, it becomes
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clear that, complainant has failed to prove that disputed cheque was
issued for discharging legal enforceable liability. Therefore, on that
count alone accused is entitled for acquittal. In result I proceed to pass
following order :
ORDER
1] The accused Smt. Savita Narottam Solanki is 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.
3] Accused shall execute P.R. Bond of Rs. 15,000/ 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 437A of the Code of Criminal Procedure. Said bail bonds
shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Mumbai (K. G. Sawant)
Dt. 03/07/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 03/07/2023
Typed On : 03/07/2023
Signed On : 03/07/2023
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