Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 2496/SS/2018
Filed on : 18/06/2018
Registered on : 18/06/2018
Decided on : 28/06/2023
Duration : 05Y. 00M. 10D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 2496/SS/2018
CNR: MHMM190115162018
Exh. No.
Mr. Shaikh Ismail Shaikh Muneer.
Adult, Indian Inhabitant,
residing at Ganpati Chawl, Mubarak
Masjid, Patkar Compund, Gilburt Hill
Road, Andheri (W), Mumbai – 58. …Complainant
Versus
Mrs. Fatima Jafar Sharif
@ Janak Narsi Kanthariya,
Adult, Indian Inhabitant
R/o. Ganpati Chawl, Mubarak
Masjid, Patkar Compound, Gilburt
Hill Road, Andheri (W), Mumbai. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Asha Mankame holding for Adv. Pradip Shetty for the
complainant
Advocate Nasim Shaikh for accused.
-- 1 of 13 --
2 C. C. No. 2496/SS/2018
JUDGMENT	JUDGMENT
(Delivered on 28/06/2023)
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 the case of complainant that, vide leave and license
agreement dated 21/07/2017, accused allowed the complainant to use
her premises for the period of 11 months starting from 21/07/2017 to
20/06/2018. Accused had deposited an amount of Rs. 2,50,000/ with
the complainant vide MOU dated 19/01/2018 and further deposited Rs.
1,00,000/.
3] It is further contention of complainant t hat after execution of
agreement said room was demolished and hence accused agreed to
refund security deposit. Accordingly, in order to repay security deposit
amount from complainant, she issued cheque bearing no. 742033 dated
20/02/2018 for an amount of Rs. 3,50,000/ drawn from her account
maintained with State Bank of India, J.P. Road, Andheri (W), Mumbai.
4] Complainant presented said cheque for clearance with his banker
namely Bombay Mercantile Co.Operative Bank, Andheri (W), Mumbai.
However, vide memo dated 16/04/2018 cheque returned unpaid with
remark “Funds Insufficient” in the account of drawer.
5] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 26/04/2018 by RPAD and same was
posted on 04/05/2018, calling upon accused to pay the cheque amount,
-- 2 of 13 --
3 C. C. No. 2496/SS/2018
within stipulated time. Notice was duly served upon accused, however
accused did not pay the 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 18/06/2018.
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
evidence, complainant has relied upon following documentary evidence
that includes:
Description of documents Exh. No.
Leave and License Agreement Exh. 20
Memorandum of Understanding Exh. 21
Disputed cheque Exh. 22
Cheque returned memos Exh. 23 and 24
Office copy of notice Exh. 25
Postal receipt Exh. 26
8] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 39, wherein accused
has taken defence of falsely implication. Accused in support of her
defence neither examined herself nor any witness.
-- 3 of 13 --
4 C. C. No. 2496/SS/2018
9] Complainant has filed his written notes of argument at Exh. 41,
while Ld. Advocate for 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 by 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 “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
-- 4 of 13 --
5 C. C. No. 2496/SS/2018
5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
.. Accused is
convicted.
REASONS
Admitted/undisputed fact
11] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the
account of accused and it bears his signature.
AS TO POINT NO. 1
12] 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.
-- 5 of 13 --
6 C. C. No. 2496/SS/2018
 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.
13] 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
-- 6 of 13 --
7 C. C. No. 2496/SS/2018
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.
14] 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
-- 7 of 13 --
8 C. C. No. 2496/SS/2018
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
prove a fact.
15] In order to prove his case, complainant examined himself
(C.W.1) by filing his affidavit of examinationinchief at Exh. 18,
-- 8 of 13 --
9 C. C. No. 2496/SS/2018
wherein he has reiterated his case from the complaint. His evidence
shows that, in view of leave and license agreement executed between
him and accused, he had given an amount of Rs. 3,50,000/ to the
accused by way of security deposit. It was suggested on the part of
accused that, period of said agreement was 21/07/2017 to
20/06/2018. It was also suggested on the part of accused that in the
month of December 2017, BMC had sent notice to the accused to
demolish the structure. Complainant has denied suggestion given on
the part of accused that, at that time complainant left the premises by
receiving an amount of Rs. 1,00,000/ from the accused. So far as
payment of Rs. 3,50,000/ is concerned one memorandum of
Understanding was executed between the parties to that effect wherein
it is specifically mentioned that, complainant has paid an amount of Rs.
3,50,000/ to the accused by way of security deposit and accused has
agreed to repay said amount. Accused has taken a defence that
disputed cheque was issued by her in favour of complainant, by way of
security only, however same has been denied by the complainant and
there is nothing to show that said cheque was issued for security
purpose only. Accused has also taken a defence that she has repaid an
amount of Rs. 1,00,000/ to the complainant, however there is no
evidence to show that accused has repaid an amount of Rs. 1,00,000/
to the complainant and hence argument raised by Ld. Advocate for
accused that, accused was not liable to pay cheque amount is not
acceptable. Oral and documentary evidence i.e. agreement of Leave
and License, Memorandum of Understanding coupled with issuance of
cheque for an amount of Rs. 3,50,000/, clearly shows that, accused
was liable to pay an amount of Rs. 3,50,000/ to the complainant and in
order to repay said amount, disputed cheque was issued by the accused
-- 9 of 13 --
10 C. C. No. 2496/SS/2018
in favour of complainant. Accused has failed to rebut the presumption
u/s. 139 of N.I. Act. Thus, evidence on record shows that, disputed
cheque was issued by the accused in favour of complainant for
discharging legal enforceable liability. In result, point no. 1 is answered
in the affirmative.
AS TO POINT NO. 2 TO 5
16] In order to prove that, disputed cheque was returned
unpaid, complainant has produced on record cheque returned memo at
Exh. 23. Said memo shows that, disputed cheque was returned unpaid
for the reason “Funds Insufficient”. Said memo bears seal of the bank
and signature of bank officer. Therefore, as per Section 146 of N.I. Act,
it is to be presumed that, said cheque was dishonoured for the reason
“Funds Insufficient.
17] It is a matter of record that, cheque was dishonoured on
16/04/2018. Demand notice was sent on 04/05/2018 i.e. within
limitation. Complainant has not produced postal A.D. card or any other
evidence to show that, demand notice was duly served upon accused.
However, from crossexamination of complainant conducted on the part
of accused it appears that, accused has not denied service of notice.
Suggestion was given on the part of accused that, there is no
documentary evidence on record to show that, notice was served upon
the accused. However, accused has neither denied his address on which
notice was sent nor specifically contended that, said notice was not
served upon her. Therefore, in view of section 27 of General Clauses
Act r/w sec. 114 of Evidence Act, and in view of pronouncement of
Hon'ble Supreme Court in the case of C.C. Alavi Haji V/s. Palapetty
Muhammed decided in criminal appeal no. 767/2007 dated
-- 10 of 13 --
11 C. C. No. 2496/SS/2018
18/05/2007 it is to be presumed that, demand notice was duly served
upon accused. Admittedly, accused did not pay cheque amount to the
complainant even after service of summons.
18] In the case at hand also, accused has not offered cheque
amount to the complainant after service of summons. Therefore,
defence of nonservice of demand notice is not available to her. It is a
matter of record that, complainant has filed this complaint within
limitation. In result point nos. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
19] Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved its claim with
cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
considering the conduct of the accused, I do not find any special reasons
or justifications to extend the benefit of probation to accused vide
Section 3 to 5 of the Probation of Offenders Act, 1958. Therefore, the
accused is called upon to state on the point of sentence.
(K. G. Sawant)
Date : 28/06/2023 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
20] I explained to accused that, she 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 her stand
on the nature and quantum of the sentence, if any.
-- 11 of 13 --
12 C. C. No. 2496/SS/2018
21] Upon asking on the point of sentence, accused submitted that
she is handicapped and she is from poor family. She is a victim of
situation. Hence prayed for leniency. On the other hand, Ld. Advocate
for complainant, prayed for maximum punishment as per law. She
further submitted that, complainant is a above 90 years old.
22] Heard both parties and their Ld. Advocates at length on the point
of sentence. Present Matter is pending since 2018. Considering nature
of offence, period since which case is pending, considering purpose of
legislature behind enactment of Section 138 of N.I. Act and guidelines
laid down by Hon'ble Supreme Court in relation to compensation
Suitable and appropriate compensation alongwith penal action against
the accused would suffice the purpose and also meets the ends of
justice. In result, I proceed to pass following order :
ORDER
i. The accused Smt. Fatima Jafar Sharif @ Janak Narsi Kanthariya
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 to pay compensation of Rs. 4,00,000/ (Rs.
Four Lac) 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 further simple imprisonment for the period of 15
days.
-- 12 of 13 --
13 C. C. No. 2496/SS/2018
iii. The amount of compensation realized from the accused, shall be
paid to the complainant, subject to expiry of the appeal period or the
orders of Honourable Appellate Court (if any).
iv. Accused to surrender her 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 her 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. 28/06/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 28/06/2023
Typed On : 28/06/2023
Signed On : 28/06/2023
-- 13 of 13 --