Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 4461/SS/2018
Filed on : 02/11/2018
Registered on : 02/11/2018
Decided on : 18/05/2022
Duration : 03Y. 06M. 16D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 4461/SS/2018
CNR: : MHMM190116882018
Exh. No. 27
Shri. Koutik Kondiba Shinde.
Dr. Ambedkar Nagar,
M.C. Chagala Marg Opp. Katke
Clinic, Room No. 1,
VileParle (E), Chakala,
Mumbai 400 099. ...Complainant
Versus
Shri. Sahebrao Shankar Sasane.
New Kothari Honda Show Room,
Khamgaon Rd. Sunderkhed,
Shanti Nagar, Buldhana, Dist. Buldhana. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Shri. Advocate J. M. Rangnekar for the complainant
Shri. Advocate V. V. Pandey and Santosh Pandey for the accused
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JUDGMENT	JUDGMENT
(Delivered on 18/05/2022)
Accused stands prosecuted for the offence punishable
under section 138 of the Negotiable Instruments Act. (Hereinafter it is
referred as 'N.I.Act' in short.)
Case of the complainant in nutshell is as under :
2] It is the case of complainant that he wanted to purchase property
at Buldhana, which is his native place. Accused represented
complainant that, he is having property at Sunderkhed, Khamgaon
Road, Buldhana and he is interested in selling this property.
Accordingly, complainant agreed to purchase this property from the
accused. In order to purchase this property, complainant paid total
consideration of Rs. 3,50,000/ by way of cash and cheque. But after
few days, accused stated to the complainant that, he is not interested to
sell this property as there was some technical problems. Therefore,
transaction was canceled and in order to partial repayment of said
amount, accused issued cheque bearing no. 000036 dated 31/07/2017
for an amount of Rs. 1,40,000/ drawn from his account maintained
with Uco Bank, Buldhana in favour of complainant.
3] As per instruction of accused, complainant presented said cheque
for clearance with his banker namely Indian Overseas Bank, however
vide memo dated 18/09/2018 said cheque returned unpaid with reason
“Funds Insufficient” in the account of drawer.
4] Thereafter, complainant issued demand notice to the accused
through his advocate within 30 days from the date of dishonour of
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cheque i.e. on 03/10/2018, calling upon accused to pay the cheque
amount within 15 days from the date of service of notice on him.
Notice was served upon accused on 08/10/2018. However, accused did
not pay amount to the complainant within a stipulated period.
Therefore, complainant filed this case on 02/11/2018 i.e. within 30
days from the date of cause of action arose for filing complaint.
5] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused was summoned. Post issuance of process,
presence of accused was secured before the court and he was submitted
to bail. Substance of accusation was read over to accused, to which he
pleaded not guilty and opt for trial. Considering nature of offence, this
case is a tried as a summons trial case.
6] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 15, as per
section 145 of the Negotiable Instrument Act. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
Sr. No. Description of documents Exh. No.
1. Original Cheque Exh. 17
2. Cheque returned memo Exh. 18
3. Office copy of notice Exh. 19
4. Postal receipt Exh. 20
5. Acknowledgement Exh. 21
7] After closer of complainant's evidence, statement of accused vide
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section 313 of Cr.P.C. was recorded vide Exh. 25, wherein accused has
taken defence of falsely implication. Accused neither examined himself
nor any witness in support of his defence which consist of total denial.
8] Heard Ld. Advocate for complainant at length. Inspite of
opportunity is given, Ld. Advocate for accused has failed to argue and
hence matter proceeded without his argument by passing order below
Exh. 01. 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 account of drawer?
…. 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
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5. Whether complaint is filed within period of
limitation? .. In the
affirmative
6. What order ?
…. Accused is
convicted
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
admitted/undisputed facts of this case.
i) It is not disputed by the accused that disputed cheque
is drawn from his account maintained with
Uco Bank, Buldhana.
ii) Signature of the accused on the cheque is not disputed
by the accused.
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.
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 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.
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
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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.
12] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
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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
prove a fact.
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13] In order to discharge initial burden, complainant got examined
himself by filing his affidavit at Exh. 15, wherein he has reiterated his
case from complaint. His evidence shows that, in order to purchase
property at Buldhana, he had given an amount of Rs. 3,50,000/ to the
accused in cash and cheque. However, said transaction was not
completed for some technical reasons and hence in order to part
repayment of this amount, disputed cheque was issued by the accused
in his favour. Thus, it is the case of complainant, for repayment of
amount given for purchase of property, disputed cheque was issued by
the accused. Inspite of opportunity given, accused did not conduct
crossexamination of complainant, but he has filed pursis on record at
Exh. 26 stating that on 19/01/2022 he has paid Rs. 10,000/ to the
accused. He further stated that he is ready to pay remaining settlement
amount of Rs. 1,30,000/ on 27/04/2022 by way of Demand draft.
14] In argument Ld. Advocate for complainant has submitted that
accused has not paid amount to the complainant as stated in pursis at
Exh. 27. She further stated that, still an amount of Rs. 70000/ is
outstanding towards the accused. It is needless to say that on the date
of issuance of cheque as well as on the date of dishonored of cheque,
accused was liable to pay cheque amount to the complainant.
Therefore, it becomes clear that disputed cheque was issued by the
accused for discharging legal enforceable liability. In result Point no. 1
is answered in affirmative.
AS TO POINT NO. 2 TO 5
15] In order to prove that cheque was returned unpaid for reason
“Funds Insufficient”, complainant has relied upon his oral evidence in
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addition to documentary evidence i.e. cheque return memos filed at
Exh. 18 issued by the concerned bank, which shows that cheque was
returned unpaid for reason “Funds Insufficient”. Said memo bears seal
of the bank. As per section 146 of N.I. Act, court shall in respect of
every proceeding under this chapter, on production of bank slip or
memo having thereon official mark denoting that cheque has been
dishonored, presume the fact of dishonor of such cheque, unless and
until such fact is disproved. In the case at hand accused has not denied
fact of dishonored of cheque. Therefore, it becomes clear that disputed
cheques was dishonored for a reason “Funds Insufficient” in the account
of accused as mentioned in memo.
16] 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. 19, along with postal receipt at Exh. 20, and
postal acknowledgement card at Exh. 21 which clearly shows that
notice was duly served upon accused. Accused has not denied service of
notice on him. Thus, all the circumstances shows that statutory demand
notice was duly served upon accused but he failed to pay cheque
amount to the complainant. Evidence on record clearly shows that
cheque was deposited for clearance with time, so also demand notice
was sent within statutory period. Complaint is also filed within
limitation. In result point nos. 2 to 5 are answered in the affirmative.
AS TO POINT NO.6
17] 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
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Negotiable Instruments Act, is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
probation to him 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 : 18/05/2022 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
18] Inspite of repeatedly called neither accused nor his
advocate appeared in this matter. Record shows that accused is
avoiding to remain present in the matter without any justifiable
reasons. Therefore, I am constrained and compelled to proceed with
the judgment in absence of accused. By his conduct accused has waved
off his chance to submit on the point of sentence. The offence
punishable U/s. 138 of N.I. Act is required to be tried summarily. For
such trials procedure contemplated in Code of Criminal Procedure for
the trial of summons case as a specified in Chapter XX of code is to be
adopted. This case is also tried as per the procedure prescribed for the
trial of summons case vide Chapter XX of Cr.P.C.
19] I have carefully gone through the provisions of Chapter XX
and Section 255 of the Code of Criminal Procedure. Unlike warrant
trial procedure, it is nowhere expressed under Chapter XX that accused
must be heard on the point of sentence before pronouncing it. Hence as
a mandate, it can't be invoked in summons cases. In fact in present
case, inspite of any speaking provisions, accused was given chance to
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appear and submit on the point of sentence, but it was accused who
waved off his chance to open mouth on the point of sentence.
Therefore, I proceed further in the absence of accused. On point of
sentence Ld. advocate for complainant Sheetal Gundal has submitted
that, out of settlement amount of Rs. 1,40,000/, accused has paid Rs.
70,000/ and still an amount of Rs. 70000/ is to be paid. Therefore,
she prayed to impose maximum sentence of imprisonment and fine
amount be imposed on accused.
20] In this matter, cheque was issued in the year 2018. Almost four
years have been passed from issuance of cheque. However, after
recording statement u/s 313 of Cr.P.C. parties have arrived at
settlement but accused has not complied compromise arrived between
the parties. In such circumstances, sentence of imprisonment along
with adequate compensation will meet the ends of justice. Considering
nature of offence, conduct of the accused, the period from which matter
is pending, I proceed to pass following order:
ORDER
i. The accused Sahebrao Shankar Sasane 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 sentenced to suffer simple imprisonment for period of
One month and he shall pay compensation of Rs. 1,00,000/ (Rs. One
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 one
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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
orders of Honourable Appellate Court (if any).
iv. Accused to surrender his bail bond.
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. Today i.e. on the date of judgment accused remained absent,
hence in view of Section 418 (2) of Cr.P.C., issue standing Nonbailable
warrant against the accused for his arrest through concerned police
station for execution of sentence.
vii. The copy of this Judgment shall be send to the convicted accused,
free of cost, immediately after it is prepared, in view of section 363(1)
of the Code of Criminal Procedure, 1973.
viii. Dictated and pronounced in open court.
Mumbai (K. G. Sawant)
Dt. 18/05/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 18/05/2022
Typed On : 18/05/2022
Signed On : 18/05/2022
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