Final Order 2

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.4402949/SS/2018
Received on : 27.07.2018
Registered on : 27.07.2018
Decided on : 16.05.2025
Duration : 06 Y. 09 M. 19 D.
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
(Presided over by Sujitkumar C. Tayde)
C. C. No.4402949/SS/2018
C.N.R.No.MHMM19-013224-2018
Exh. No.
Mrs. Hema Dinesh Mehta
Age – 74 years, Occu. - Business,
R/o.Vimal, 1st Floor,
North South Road 3, JVPD Scheme,
Vile Parle (West),
Mumbai – 400 056..
....Complainant
V/s.
1] Umang Hospitality
A Partnership Firm
Office address at Umang Banquet,
5th Floor, Hi Life Mall,
P.M. Road, Opp. Shabri Restaurant,
Near Railway Station,
Santacruz (W),
Mumbai – 400 054.
2] Mr. Mukund Vanjara,
Age - 65 Yrs., Occu. - Business,
Partner of Umang Hospitality,
A/9, Arihant Apts., Kandivali (East),
Mumbai – 400 101.
....Accused.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 1 of 22 --
2 C. C. No.4402949/SS/2018
3] Mr. Chintan M. Vanjara,
Age - 43 Yrs., Occu. - Business,
Partner of Umang Hospitality,
A/9, Arihant Apts., Kandivali (East),
Mumbai – 400 101.
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Complaint for the offence punishable under Section 138 r/w 141 of
The Negotiable Instruments Act.
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Learned advocate for the complainant : Shri R.S.Lodhi
Learned advocate for accused no.1 to 3 : Shri Bansode
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J U D G M E N T
(Delivered on 16/05/2025)
The accused persons are alleged to have issued the cheque
which was returned unpaid due to “Funds Insufficient” in the account
maintained by him. Thus, the accused persons stand prosecuted for the
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881(Hereinafter it is referred as 'N.I. Act', in short).
The facts of the case lie in a narrow compass as under:-
2. The accused no.2 and 3 are the partners of a Firm i.e.
Umang Hospitality which is arrayed as accused no.1 in this matter. The
another Firms i.e. Umang Banquet and Umang Caterers are the sister
concerned Firms of Umang Hospitality and the accused no.2 and 3 are
responsible for the day to day affairs of the said partnership firms i.e.
Umang Hospitality, Umang Banquet and Umang Caterers.
3. The complainant and the accused no.2 and 3 are friends.
Having regard to the friendly relations, the complainant advanced
friendly loan of Rs.25,00,000/- to the accused by transferring the said
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
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3 C. C. No.4402949/SS/2018
amount in the account of the Firm namely Umang Banquet through
R.T.G.S. on 15/07/2016. The accused promised to repay the said
amount within a short period.
4. When the complainant asked the accused to repay the said
borrowed amount, the accused No.3 issued cheque bearing No.001717
dated 13/06/2018 for the sum of Rs.25,00,000/- on behalf of Umang
Hospitality Firm (Accused No.1). The said cheque was drawn on Bank
of Baroda, Marine Drive Branch, Mumbai.
5. Having received the said cheque, the complainant
presented the same before her banker, namely Canara Bank, J. B. Nagar,
Andheri (E), Mumbai, for encashment on 14.06.2018. But the said
cheque was dishonoured for want of sufficient funds as per the bank
advices dated 15/06/2018.
6. Having got the knowledge about the dishonour of the said
cheque, the complainant issued statutory demand notices to the Umang
Hospitality Firm (i.e. Accused no.1), accused no.2 and 3 who are said to
be the partners of Umang Hospitality by registered AD post on
28/06/2018 through her advocate and thereby called upon the accused
persons to repay the said amount within the stipulated period. The said
notice was received on behalf of accused no.1. However, the accused
no.2 and 3 did not receive it and therefore, it was returned “unclaimed”
& “Intimation Posted” to the complainant. Thus, the accused persons
did not repay the said borrowed amount. In short, according the
complainant, the accused persons committed offence punishable under
section 138 Negotiable Instrument Act by issuing the cheque which was
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 3 of 22 --
4 C. C. No.4402949/SS/2018
dishonoured for want of sufficient fund in the account maintained by
the accused. Hence, the complainant knocked the doors of this Court by
filing the present complaint on hand.
7. The learned predecessor in office issued process against the
accused as per Section 142(a) of the Negotiable Instruments Act. In
response the summons, accused No.2 and 3 appeared. The contents of
particulars (Exh.No.05) for the offence punishable under section 138 of
the Negotiable Instruments Act were read-over and explained to the
accused no.2 and 3. The accused persons pleaded not guilty and
claimed to be tried.
8. In order to prove the guilt of the accused, the complainant
examined herself by way of filing her affidavit in lieu of examination-in-
chief (Exh.No.06) under section 145(1) of the Negotiable Instruments
Act. She also examined her husband namely Dinesh Mehta vide
Exh.No.20. Besides oral evidence, the complainant relied upon the
following documentary evidence.
Sr.
No.
Description of documents Exh.No.
1 Bank Statement 08
2 The Cheque in dispute 09
3 Bank Memo 10
4 Office Copy of Demand Notice 11
5 Postal Receipts 12 (Colly.)
6 Tract Report 13
7 Acknowledgment Card 14
8 Two closed envelopes 15 &16
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 4 of 22 --
5 C. C. No.4402949/SS/2018
9. In view of the incriminating evidence placed on record, the
statement of the accused No.2 and 3 came to be recorded under
Section 313 of the Code of Criminal Procedure wherein the accused
persons have taken the stand that the complainant filed this case to
extract money from them.
10. The learned advocate for the complainant, R. S. Lodhi,
filed the written notes of argument and further vehemently argued that
the complainant has satisfied all the ingredients of Section 138 of the
Negotiable Instruments Act and therefore, according to him, the
accused No.1 and 2 are liable to be punished in accordance with law.
11. Per contra, the learned advocate for the accused, Shri
Deepak Bansode, also filed his written notes of argument and submitted
that the accused persons have succeeded to rebut the presumption
under section 139 of the Negotiable Instruments Act and therefore, he
prayed to dismiss the case. He further argued that no case is made out
against the accused no.2 as he is not authorized signatory of the
Umang Hospitality Firm (Accused No.1).
12. I have gone through the citations filed by the learned
advocate for the complainant. The relevant ratio laid down therein will
be quoted at the appropriate stage herein after.
13. Having heard the learned advocates for both the sides, I
perused the record. In view of the accusation and the defence,
following points arise for my determination. In the light of evidence, I
record my findings thereon with reasons as under:-
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 5 of 22 --
6 C. C. No.4402949/SS/2018
SR.
NO.
POINTS FINDINGS
1. Does complainant prove that cheque in
question was issued by the accused in
favour of the complainant for
discharging legally enforceable
liability?
Proved
2. Does the complainant prove that the
cheque was returned unpaid for the
reason “Funds insufficient”?
Proved
3. Does the complainant prove that the
statutory demand notice was issued to
the accused within limitation?
Proved
4. Whether the accused succeeded in
rebutting the presumption arising out
of section 139 of the Negotiable
Instruments Act?
Disproved
5. Whether the offence punishable under
section 138 of the Negotiable
Instruments Act is made out against
accused ?
The offence is made
out against the
accused No.3
6. What order ? The accused No.3 is
convicted for the
offence punishable
under section 138
r/w 141 of the
Negotiable
Instruments Act as
per the final order.
:R E A S O N S:
14. In the present case on hand, the accused persons are
alleged to have committed the offence punishable under section 138 of
the Negotiable Instruments Act. In order to prove the offence
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 6 of 22 --
7 C. C. No.4402949/SS/2018
punishable under section 138 of the Negotiable Instruments Act, the
following mandatory ingredients are required to be satisfied:-
i) 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.
ii) That the cheque has been presented to the bank within a period of six
months from the date, on which it is drawn or within period of its
validity, whichever is earlier.
iii) 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.
iv) 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 dishonour of the cheque as
unpaid.
v) 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.
vi) The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
vi) The drawer of the said cheque failed to rebut the presumption under
section 118 and 139 of the
Negotiable Instruments Act.
Keeping in mind these ingredients, I proceed to determine the
points noted above.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 7 of 22 --
8 C. C. No.4402949/SS/2018
AS TO POINT NO.1:
(Does complainant prove that disputed cheque was issued by the
accused, in favour of the complainant for discharging legal enforceable
liability?)
15. It is the case of the complainant that the accused persons
had taken friendly loan from her and the disputed cheque was issued by
the accused no.3 in order to discharge their legally enforceable liability.
Therefore, before appreciating the evidence in this regard, let us have a
glance at the term of legally enforceable liability.
16. A liability is a legally binding obligation payable to another
entity. Legally enforceable means capable of being enforced from a legal
point of view. It is the case of the complainant that the accused no.2
and 3 are the partners of Umang Hospitality and they are also involved
in the business of hospitality and other relatives services which are
sister concerned such as Umang Banquet and Umang Caterers. The
complainant further submits that the accused no.2 and 3 are responsible
for day to day affairs of the business of the Partnership Firms. Thus,
according to the evidence of the complainant and her husband, both the
accused no.2 and 3 used to look after the business of Umang Banquet
and Umang Caterers which are the sister concerned Firms of Umang
Hospitality Firm (Accused No.1).
17. It is pertinent to note here that it is the stand of the accused
persons that they are not partners of the Umang Hospitality. But the
cheque in dispute which is filed on record specifically shows that the
said cheque worths Rs.25,00,000/- was issued for Umang Hospitality
and the said cheque bears the signature of accused no.3 (Chintan
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 8 of 22 --
9 C. C. No.4402949/SS/2018
Vanjara). In such circumstances, it can be inferred that the accused
no.3 issued the said cheque for the Umang Hospitality which is said to
be partnership Firm.
18. In fact, the complainant has come with the case that she
had transferred the amount of Rs. 25,00,000/- by way of R.T.G.S. on
15/07/2016 in the bank account of Umang Banquet which is said to be
sister concerned Firm of Umang Hospitality. In order to corroborate this
oral testimony, the complainant has filed the photostat copy of her bank
passbook. This document is verified by the original passbook and it is
marked as Exh.No.08. This is a public document and it is not disputed
by the accused persons during the course of trial. Therefore, the said
document (Exh.No.08) can be taken into consideration.
19. After perusal of the bank passbook (Exh.No.08), it is
reflected that the amount of Rs.25,00,000/- was transferred from the
account of the complainant by way of R.T.G.S. and the said amount was
credited in the bank account of Umang Banquet which is said to be
sister concerned Firm of Umang Hospitality (Accused No.1). In fact,
though the complainant and her husband were cross-examined at
length, yet it is not the stand of the accused persons that the said
Umang Banquet has no concern with Umang Hospitality. Moreover, the
accused persons have not denied the transfer of the said amount of
Rs.25,00,000/- from the account of the complainant in the account of
Umang Banquet. In such circumstances, I have no hesitation to hold
that the accused persons received the amount of Rs.25,00,000/- from
the complainant.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 9 of 22 --
10 C. C. No.4402949/SS/2018
20. It is the stand of the accused persons that the complainant
has not filed the copy of partnership deed. It is admitted position that
except adducing the oral evidence regarding the said partnership Firm,
the complainant did not file the deed of partnership. But the cheque in
question which is filed on record reveals that the accused no.3 issued
the cheque on behalf of Umang Hospitality in favour of the complainant
on 13/06/2018. In such circumstances, the positive inference can be
drawn that the accused no.3 is authorized signatory of Umang
Hospitality, otherwise there was no any reason for the accused no.3 to
issue the cheque in favour of the complainant on behalf of Umang
Hospitality. In other words, unless and until the accused no.3 was
authorized to issue the cheque, he could not have issued the said
cheque in favour of the complainant. Thus, in my opinion, the cheque
filed on record (Exh.No.09) is sufficient to draw the adverse inference
against the accused persons and it can be held that the accused no.3
issued the cheque in dispute in favour of the complainant to repay the
said borrowed amount of Rs.25,00,000/-.
21. In the instant case, the accused no.3 has nowhere denied
his signatures made on the cheque in dispute (Exh.No.09). In such
circumstances, it can be held that the accused is under obligation to pay
that the amount which he had received from the complainant. In such
scenario, I have no hesitation to hold that the presumption of Section
118 and 139 of the Negotiable Instruments Act are attracted in this
matter. In this regard, I am guided by the ratio laid down by the
Hon'ble Apex Court, in the case of M/s. Kalamani Tex and another V/s.
P. Balsubramaniyam [Criminal Appeal No. 123 of 2021] the Hon'ble
Apex Court held that the Negotiable Instruments Act mandates that
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 10 of 22 --
11 C. C. No.4402949/SS/2018
onces the signature(s) of an accused on the cheque/ negotiable
instrument are established, then these 'reverse onus' clauses become
operative.
22. As per the evidence of the complainant, the accused No.3
had issued the cheque in connection with the transaction mentioned in
the complaint. In fact, though the witness was cross-examined at
length, yet the signature of the accused made on the cheque in dispute
was not denied. In such scenario, I am guided by the ratio laid down
by the Hon'ble Apex Court in the case of Triyambak S. Hedge V/s.
Shripal (Cri. Appeal No.849850/2011) wherein the Hon'ble Apex Court
observed –
“
Signature on document at Exh.No.P-2 is not disputed. Exh.No.P-
2 is the dishonoured cheque based on which the complaint was filed.
From the evidence tendered the J.M.F. Court, it is clear that the
respondent has not disputed the signature on the cheque. If that be the
position as noted by Courts below, a presumption would arise under
section 139 of N.I. Act in favour of the applicant who was holder of the
cheque”.
23. In the case of Rangapaa Vs. Shri Mohan reported in (2010)
11 SCC 441, the Hon'ble Supreme Court held that the presumption
mandated by the Section 139 of the Negotiable Instruments Act
includes the existence of a legally enforceable debt or liability.
24. In view of the discussion noted above I have come to the
conclusion that the complainant has proved that disputed cheque was
issued by the accused No.3 in favour of the complainant for discharging
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 11 of 22 --
12 C. C. No.4402949/SS/2018
legal enforceable liability. Hence, I record my finding in affirmative for
point no.1.
AS TO POINT NO.2:
(Does the complainant prove that the cheque was returned unpaid for
the reason “Funds insufficient”?)
25. It is the case of the complainant that the Cheque No.
001717 which had been issued by the accused no.3 for the accused no.1
(Umang Hospitality Firm), was dishonoured for the reason “Funds
insufficient”. The complainant deposed that after having received the
said cheque, she deposited the same to the banker of the accused
through her banker within the stipulated period. The complainant
further deposed that the said cheque was dishonoured for want of
sufficient fund as per the Bank Advices dated 15/06/2018. The
complainant filed the original copy of said cheque return memo. In the
said cheque return memo, it is mentioned that the said return memo is
system generated item hence it does not require any signature.
26. It is pertinent to note here that though the complainant
was cross-examined at length, yet the accused did not challenge the
validity and legality of the said cheque return memo (Exh.No.10) filed
on record. It is needless to say here that the document i.e. cheque
return memo has presumptive value regarding its genuineness as per
the provisions of Banking laws.
27. In the case of Guruvayurappan Vs. Dhanasree Credits
reported in 2009 SCC OnLine Ker 3013, the Hon'ble Kerala High Court
held that –
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 12 of 22 --
13 C. C. No.4402949/SS/2018
“
Section 146 dispenses with formal proof of the documents
referred to therein by examining the bank official concerned.
Production of the document having thereon the official mark
denoting that the cheque has been dishonoured is sufficient and
when the document is produced the court shall, in respect of
every proceeding under Chap. XVII of the Act presume the fact
of dishonor of the cheque. Such presumption shall remain in
force unless and until such fact is disproved by the person
contradicting it”. (para 7)
28. In the present case on hand, the accused did not rebut the
said presumption. In such scenario, having regard to the ratio laid down
in the citation
supra, I have no hesitation to take into consideration the
said cheque return memo which discloses that the cheque was returned
unpaid due to insufficiency of fund in the account maintained by the
accused. Resultantly, I record finding in affirmative for Point No.2.
AS TO POINT NO.3 :-
(Does the complainant prove that she had issued the statutory demand
notice to the accused persons within limitation demanding the cheque
amount?)
29. In view of Section 138 (b) of the Negotiable Instruments
Act, the payee or the holder in due course of cheque, is required to
make a demand for the payment of the amount of money by giving a
notice in writing, to the drawer of the cheque within 30 days from the
receipt of information by him from the bank regarding the return of the
cheque as unpaid. So let us scan the evidence in this regard.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 13 of 22 --
14 C. C. No.4402949/SS/2018
30. According to the evidence of the complainant, after having
received the cheque return memo, she issued the notice to the accused
No.1 to 3 on 27/06/2018 through her advocate by registered A.D.post.
In order to support her oral evidence, the complainant filed the office
copy of the statutory demand notice (Exh.No.11). So also she filed the
postal receipts and the envelopes. After perusal of the said envelopes
and the postal receipts, it appears that the addresses of the accused
mentioned thereon are exactly similar to the addresses mentioned in
the present complaint case. Moreover, the complainant has filed the
copy of postal acknowledgment (Exh.No.14). According to the evidence
of the complainant, this postal acknowledgment (Exh.No.14) was
received on behalf of the accused no.1 i.e. Umang Hospitality, a
partnership Firm. In fact, this piece of evidence has not been specifically
denied by the accused while conducting the cross-examination of the
complainant. Moreover, the record shows that the complainant had
already issued the statutory demand notice by the registered A.D. on
the last known address of the accused persons. It is pertinent to note
here that the accused appeared in this matter and their plea was
recorded. In fact, in the said plea the accused persons have mentioned
their address which is specifically mentioned on the said envelopes
which had been sent by the registered postal A.D. Thus, it can be
concluded that the complainant had issued the said statutory demand
notices on the addresses of the accused persons. The record shows that
the said envelopes containing the notice were returned unclaimed.
31. In the case of Malanbai Ratnaparkhi V/s. Govinda R.
Motade reported in 2002 Cr.L.J.1188, the Hon'ble Bombay High Court
held that -
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 14 of 22 --
15 C. C. No.4402949/SS/2018
“
Once the notice is shown to have been dispatched by post and
the envelop in which such notice was sent, was carrying correct address
of the sendee written on it, the presumption would arise in favour of
the sender to the effect that such notice was duly served upon the
sendee unless that presumption is rebutted by necessary evidence
alongwith the fact that the sendee was not responsible for such non-
service”.
32. It is settled that where a notice is not claimed even though
sent by registered post, with the aid of Section 27 of the General
Clauses Act, the drawer of the cheque may be called upon to rebut the
presumption which arises in favour of service of notice. In the present
case on hand, the accused did not adduce any cogent evidence to rebut
the said presumption. Hence, it can be presumed that the said notice
was served on the accused within the statutory period of 30 days.
33. Having gone through the record, it transpires that the
accused failed to make the payment of the money to the complainant in
due course of the cheque within 15 days from the receipt of the said
notice. It is admitted portion that the accused has not made full and
final payment of the cheque amount till passing this Judgment.
34. In view of the discussion of the above, I have no hesitation
to hold that the complainant had issued the statutory demand notice to
the accused No.3 within prescribed period and the accused failed to pay
the cheque amount to the complainant within the statutory period of
limitation. Hence, I record my finding in affirmative for Point No.3.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 15 of 22 --
16 C. C. No.4402949/SS/2018
AS TO POINT NO.4:-
(Whether the accused succeed in rebutting the presumption arising out
of section 139 of the Negotiable Instruments Act?)
35. In the case of Goa Plast Pvt. Ltd., V/s Chico D'souza (2003
SCC (Cri)499, the Hon'ble Supreme Court considered the object behind
section 138 and 139 of the Negotiable Instruments 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. It is settled that the
standard proof of rebutting the presumption is preponderance of
probabilities. Having regard to this settled position, I turn to make the
scrutiny of the evidence placed on record to determine whether the
accused rebutted the presumption under section 139 of the the
Negotiable Instruments Act.
36. The learned advocate for the accused No.3, Shri Bansode,
argued that the complainant did not produce the deed of partnership
firm and therefore, she has no locus-standi to ask for any payment from
the accused. But I am not inclined to accept his submission because the
cheque filed on record (Exh.No.9) specifically reveals that the said
cheque was issued for Umang Hospitality and it was signed by the
accused no.3.
37. In view of section 106 of the Indian Evidence Act, when
any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. It is the stand of the accused that Umang
Banquet and Umang Hospitality are different Firms. In such
circumstances, having regard to the provisions of section 106 of the
Indian Evidence Act, in my opinion, the accused No.3 could have filed
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 16 of 22 --
17 C. C. No.4402949/SS/2018
the relevant documents to show that Umang Banquet has no nexus with
Umang Hospitality Firm. But the accused persons neither adduced any
oral evidence nor did they file any relevant document to rebut the
contentions of the complainant that the Umang Banquet is sister
concerned Firm of Umang Hospitality and the accused no.2 and 3 are
responsible for the day to day business of the said firms. In such
circumstances, it can be held that the accused No.3 failed to discharge
his burden as contemplated under section 139 of the Negotiable
Instrument Act within the preponderance of probability.
38. It is pertinent to note here that the accused has nowhere
denied the fact of issuance of cheque in dispute. In the present case on
hand, except conducting the cross-examination of the complainant and
her husband, the accused neither stepped into the witness box nor did
he file any relevant document to rebut the oral and documentary
evidence filed by the complainant. In such circumstances, the ratio laid
down in the case of Haribhau Baliram Gondchawar Vs State of
Maharashtra and Another, (Criminal Appeal No.239/2009) is helpful.
In this citation, the Hon'ble Bombay High Court convicted the accused
for failure to discharge the burden as contemplated under section 139
of the Negotiable Instruments Act. So also in the case of Moideen Vs
Johny (Criminal Appeal No.516/2001), the Hon'ble Kerala High Court
also convicted the accused for the absence of evidence to rebut the
presumption as contemplated under section 118 and 139 of the
Negotiable Instruments Act.
39. In view of the discussion noted above, I have come to the
conclusion that the accused utterly failed to rebut the presumption as
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 17 of 22 --
18 C. C. No.4402949/SS/2018
contemplated under Section 139 of the Negotiable Instruments Act. On
the other hand, the complainant adduced positive and reliable evidence
to establish the fact that the accused No.3 who is authorized signatory
of Umang Hospitality Firm (Accused No1) issued the said cheque to
discharge his legally enforceable liability. Hence, I record my finding in
negative for Point No.4.
AS TO POINT NO.5:-
40. In view of the positive finding for Point No.1 to 4, it can be
held that the complainant has duly proved her claim by adducing
cogent and relevant evidence. Hence, it can be concluded that the
offence punishable under section 138 of the Negotiable Instruments Act
is made out against the accused No.3.
41. When the case was called out for hearing on the point of
quantum of punishment, the accused No.3 was absent. His learned
advocate filed the application for grant of his exemption from attending
the Court today. After getting the say of the complainant, that
application came to be rejected.
42. On the point of quantum of punishment, the learned
advocate for the accused, Shri Bansode submitted that the accused has
no criminal background. Hence, he prayed to show leniency while
slapping the punishment.
43. Per contra, the learned advocate for the complainant
vehemently argued that the accused deceived the complainant by
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 18 of 22 --
19 C. C. No.4402949/SS/2018
issuing the cheque which was dishonoured. He further submitted that
the accused did not repay the cheque amount and therefore, the
complainant had to suffer monetary loss and mental agony. Thus,
according to him, heavy punishment is required to be imposed on the
accused for having committed the offence punishable under section 138
of the Negotiable Instruments Act.
44. Having heard the learned advocates for both the sides on
the quantum of punishment, I perused the record.
45. Having regard to the conduct of the accused and the nature
of offence, I do not find any special reason or justification to extend the
benefit of probation to the accused as per the provision of Probation of
Offender Act.
46. In the case of M/s. Kalamani Tex and another V/s. P.
Balsubramanian, decided in Special Leave Petition (Cri) No.1876/2018
dated 10/02/2021, the Hon'ble Apex Court has given certain guidelines
and for ready reference relevant paras from said judgment are quoted
below:-
“
As regard to the claim of compensation raised on behalf of the
respondent
, we are conscious of the settled principles that the object of
Chapter XVII of the NIA is not only punitive but also compensatory. The
provisions of NIA envision a single window for criminal liability for
dishonour of cheque as well as civil liability for realization of the
cheque amount. It is also well settled that there needs to be a consistent
approach towards awarding compensation and unless there exist
special circumstances, the Courts should uniformly levy find up to twice
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 19 of 22 --
20 C. C. No.4402949/SS/2018
the cheque amount along with simple interest at the rate of 9% per
annum.”
47. The record shows that the accused No.3 has raised the
defence that the Umang Banquet Firm has no concern with Umang
Hospitality and he is not partner of the Umang Hospitality. But the
cheque filed on record specifically reveals that it was issued by the
accused no.3 for the Umang Hospitality. Moreover, the complainant has
satisfactorily proved that the amount of Rs.25,00,000/- was transferred
by R.T.G.S. from her bank account into the bank account of Umang
Banquet which is said to be managed by the accused no.3 and it is the
concerned sister Firm of Umang Hospitality Firm (Accused No.1). Thus,
it appears that the accused has raised lame excuses to avoid his
responsibility and thereby tried to prolong the repayment of the amount
which he had received from the complainant who is senior citizen. This
conduct of the accused No.3 is sufficient to come to the conclusion that
he avoided to perform his statutory obligation. In the facts and
circumstances of the present case on hand, the ratio laid down by the
Hon'ble Bombay High Court (Nagpur Bench) in the case of Mohammed
Murtuza Mohammed Yusuf Vs Gulam Nabi Abdul Rehman and Ors.,
(Criminal Appeal No.23/2010 decided on 12/02/2010), is squarely
applicable. In this citation, the Hon'ble Bombay High Court held that -
“Section 138 of the Negotiable Instruments Act aims at
punishing unscrupulous drawers of cheque who though purport
to discharge their liability by issuing cheque, have no real
intention to pay. Trickster drawer may find out way and means
to defeat the honest payee by avoiding payment. The court must
be on guard to prevent miscarriage justice”.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 20 of 22 --
21 C. C. No.4402949/SS/2018
48. In the present case on hand, the complainant who is 71
years old, has been fighting this legal battle since last about seven years.
In fact, the record shows that the accused avoided is liability. Therefore,
having regard to the conduct of the accused and the ratio laid down in
citation
supra, following order would meet the ends of the justice:-
ORDER
1] The accused No.3, Mr. Chintan M. Vanjara, Age about - 43
Yrs., Occu. - Business, Partner of Umang Hospitality, A/9,
Arihant Apts., Kandivali (East), Mumbai – 400 101 is hereby
convicted for the offence punishable under Section 138 r/w.141
of the Negotiable Instruments Act in view of Section 255 (2) of
the Code of Criminal Procedure. Resultantly, the accused No.3
is sentenced to pay the fine of 50,00,000/- (Rs. Fifty Lakh
Only) for having committed the offence punishable under
section 138 r/w 141 of the Negotiable Instruments Act.
2] The amount of fine of Rs.50,00,000/- (Rs. Fifty Lakh Only)
which is imposed on the accused No.3, shall be paid to the
complainant/victim under Section 357 of the Code of Criminal
Procedure within two months from today. In default of
payment of fine, the accused No.3 shall suffer simple
imprisonment for period of three months.
3] The amount of compensation realized from the accused No.3,
shall be paid to the complainant, subject to expiry of the appeal
period or the orders of Hon’ble Appellate Court (if any).
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 21 of 22 --
22 C. C. No.4402949/SS/2018
4] The accused No.3 is absent at the time of pronouncement of
Judgment and his application for grant of personal exemption
from attending the Court is rejected. Hence, issue Bailable
warrant of Rs.1,000/- against the accused No.3.
5] The copy of this Judgment be provided free of cost to the
accused No.3 immediately after it is prepared in view of section
363 (1) of the Code of Criminal Procedure, 1973.
6] The Judgment is dictated on dais and pronounced in open
Court.
(Sujitkumar C. Tayde)
Date : 16/05/2025 Judicial Magistrate First Class,
44th Court, Andheri, Mumbai.
Typed On: 16.05.2025
Signed On: 16.05.2025
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 22 of 22 --