Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.4404935/SS/2018
Received on : 12.12.2018
Registered on : 12.12.2018
Decided on : 18.03.2023
Duration : 04 Y. 03 M. 06 D.
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44TH COURT, ANDHERI, MUMBAI.
(Presided over by A. I. Shaikh)
C. C. No.4404935/SS/2018
C.N.R.No.MHMM190134232018
Exh. No. 17
ANIKET ENTERPRISES,
Through its Proprietor,
MR. ARUN DESHPANDE,
Age – 63 Yrs., Occu.: Business,
Add: 407, 4th Floor, Landmark Bldg.
Opp. Raheja Classic Complex,
Next to Valecha Chambers,
New Link Road,
Andheri (W),
Mumbai – 400 053.
....Complainant
V/s.
1] SONAL PLASSRUB INDUSTRIES PVT.LTD.
Regd. Add: 404, Rimsan Estate,
4th Floor, Behind Evershine Mall,
Chincholi Bunder Extn.
New Link Road, Malad (W),
Mumbai – 400 064.
SONAL PLASSRUB INDUSTRIES PVT.LTD.
Factory Address: L 25, MIDC,
Tarapur Indl. Area,
Boisar – 401 506,
District – Palghar.
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2] MR. MANISH ANILKUMAR PURECHA
(DIRECTOR)
103/C, 1st Floor, Gokul Nagar,
B/H. Parekh Nagar, S.V.Road,
Kandivali (W), Mumbai – 67.
3] MR. PRASHANT KESHAVJI PURECHA
(DIRECTOR)
13023, Jeevan Sapna CHS Ltd.,
Bldg. No.5, JP Gardens,
Patel Nagar, Off M. G. Road No.4,
Kandivali (West),
Mumbai – 400 067.
....Accused.
Complaint for the offence punishable under Section 138 r/w. 141 of
The Negotiable Instruments Act.
Learned advocate of the complainant : Mr. S. N. Imam
Learned advocates of the accused : Mr. Sayyed
J U D G M E N T
(Delivered on 18/03/2023.)
Accused are prosecuted for the offence punishable under
Section 138 r/w. 141 of the Negotiable Instruments Act, 1881.
2. It is the case of the complainant that the complainant has
proprietary concern and accused no.1 is the private limited company.
Accused no.2 and 3 are its directors. The complainant has in business
of dealing in chemical. The complainant has supplying chemical to the
accused company as per their requirements and they are known to each
other last may years. The complainant has supplying the material as
per the order of accused company. The total invoices amounting of
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Rs.36,57,528/ which is received by the accused. The accused has
issued disputed cheques for the amount of the invoices amount. When
the said cheques were deposited they are dishonoured on the reason of
“Payment stopped by the drawer”. Inspite of issuance of notice the
accused company has not comply the notice or nor reply the notice.
3. In response of summons accused are appeared. The
particulars of the offence punishable under Sections 138 r/w. 141 of the
Negotiable Instruments Act was read over and explained to accused
wherein they pleased not guilty and claimed to be tried. Accordingly ,
the accused put on trial.
4. Complainant Arun Pralhad Deshpande (PW01) filed
evidence affidavit (Exh.No.14) by virtue of Section 145(1) of the
Negotiable Instruments Act and reproduced therein the material
contents of the complaint. He has been crossexamined by the accused
in length. He tendered following documents which will be discussed at
appropriate place.
DOCUMENTS EXHIBIT NO.
1] Print Out copy Registration
Certificate issued by BMC along with
certificate u/s. 65 B Indian Evidence
Act
Exh.16 and Exh.17
2] Print out copy Registration
Certificate Form GST REG06 issued
by Govt. of India and Print out copy
Annexture B issued Govt. of India,
along with certificate u/s. 65 B
Indian Evidence Act.
Exh.18 and Exh.19
3] Print out copy two Purchase Order
dt.30/07/2018 and 13/08/2018
along with certificate u/s. 65 B
Exh.20 to 22,
Exh.22A and
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Indian Evidence Act. Exh.23
4] Original Three Delivery Challan
dt.04/08/2018, 08/08/2018 and
17/08/2018
Exh.24, Exh.25 and
Exh.26
5] Original Three Tax Invoice
dt.04/08/2018, 08/08/2018 and
17/08/2018
Exh.27 to Exh.29
6] Original Two Lorry Receipt (LR
No.102812 & 103115)
Exh.30 and Exh.31
7] Original Three Delivery Challan
No.112,113 & 118 given by accused
of empty bottle, Print out copy e
mail letter from accused's company
dt.08/10/2018 status of pending
bills alongwith certificate u/s.65 B
Indian Evidence Act, print out of
copy goods and services tax
document alongwith certificate u/s
65 B Indian Evidence Act and
original confirmation of account
Exh.31A to
Exh.31I
8] Original three dishonoured cheque
no.005609, 002614 and 002739
Exh.32A, Exh.32B
and Exh.33
9] Original three return bank memos
dtd. 23.10.2018
Exh.33A to
Exh.33C
10] Office copy Demand Notice
dtd.05/11/2018
Exh.33D
11] Original Four Postal Receipts
dt.09/11/2018
Exh.33E
12] Three acknowledgment Card and
one returned envelop
Exh.33F, Exh.33G
and Exh.33H
5. The statement of the accused no.2 and 3 under section 313
(1)(b) of the Code of Criminal Procedure, 1973, came to be recorded
(Exh.15 and Exh.16). The defence of the accused that complainant
filed this false case and the accused are not liable to pay the amount of
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the subject cheques.
6. Considering the accusations and defence, following points
arise for determination, to which findings are recorded as under :
POINTS FINDINGS
1. Whether it is proved that the subject
cheques were issued in discharging
the legal liability ?
: In the affirmative
2. Whether the offence under Section
138 of the Negotiable Instruments Act
is proved ?
: In the affirmative
3. What order ? : As per the final
order.
:R E A S O N S:
AS TO POINTS NO. 1 AND 2 :
7. The learned advocate for the complainant filed written
notes of arguments. The advocate of the complainant prayer to convict
the accused as all the ingredients of offence have proved by the
complainant.
8. It is the case of the complainant that the accused ordered
for liquid bromine vide order nos.SPI/PO/114/1819 &
SPI/PO/138/201819 dated 30/07/2018 & 13/08/2018 respectively
against which complainant has supplied the material vide Invoices
Nos.AEM119/1819, AEM124/1819 & AEM134/1819 dated
04/08/2018, 08/08/2018 and 17/08/2018 for Rs.12,19,176/ and
Rs.12,19,176/ & Rs.12,19,176/ total invoices amounting to
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Rs.36,57,528/ which accused have received as per purchase order. The
accused have issued disputed cheques but the said cheques were
dishonoured. Even accused have not deny the issuance of cheques as
well as entire transaction admitted by the accused.
9. The accused have also filed written notes of arguments and
prayer to acquit accused on the ground that the goods supplied was
impure and it was rejected goods. All the disputed cheques are PDC
cheques. Therefore, the accused have rebutted the evidence of
complainant.
10. From the above discussion it is necessary to complainant to
establish its case by proving of the essential ingredients in the present
case in hand. Accused have admitted the transaction as well as issuance
of cheques, signatures on cheques. Therefore, it is settled law that the
presumption under Section 139 includes the presumption that their
exist legal enforceable debt or liability. Such presumption can be
rebutted on the basis of evidence prayed by the complainant or by
leading the own evidence of the accused.
11. In the present case the complainant has examined one
witness i.e. the complainant himself and submitted that the
goods/material was received by the accused no.1 and by way of three
consignments of 5040 kg each. The total value of such goods is
Rs.36,57,528/. The amount is pending of three bills which was
acknowledged by the accused. Even, email sent by the Rajan Dalvi on
behalf of the accused who is the employee of the accused. It is further
submitted by the complainant that the delivery challan Exh.24, Exh.25
and Exh.26 were also filed on record. The goods are delivered to the
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accused. Even the accused have admitted that they have received the
goods. The tax invoices Exh.27, Exh.28 and Exh.29 are also admitted
by the accused. Therefore, the complainant have proved essential
ingredients of the offence. Hence, complainant is prayed to convict the
accused persons.
12. The accused have accepted the entire transaction. Even,
accused have admitted the issuance of cheques, receiving of notice and
signatures on disputed cheques. But accused have taken defence that
the accused have given substandard goods. Accordingly, the accused
have issued rejection report alongwith lab reports to the complainant.
Even, accused have issue the schedule payment through mail and as per
schedule the accused should have deposited one cheque on or before
19th October, 2018, second cheque after 10 days of clearing of 1st
cheque i.e. before 31st October, 2018 and 3rd cheque after 10 days of
clearing of 2nd cheque i.e. on or before 12th November, 2018. Even, the
complainant has accepted the schedule but complainant has not
deposited the disputed cheques as per schedule given by the accused.
Therefore, accused have suspected from the conduct of the complainant
and given instruction to the bank for stoppage of payment. Even, it is
also admitted that the accused have issued PDC cheques to the
complainant. Therefore, the advocate for the accused have argued that
the disputed cheques were issued as the PDC. Hence, it is not
enforceable debt or liability of the accused. Hence, the presumption
under Section 139 of Negotiable Instrument Act rightly rebutted by the
accused. The accused has examined himself as well as accused has
examined another witness who is delivered the report to the accused.
Therefore, the accused have prayed to acquit the accused.
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13. First of all I would like to discuss that the complainant filed
on record the invoices delivery challan and their documents on record.
It appears from delivery challan that if any complaint in respect of
material supplied vide the invoices will be entertain unless the same has
lodged any writing within 15 days of dispatch but till the date accused
failed to lodge the complaint to the complainant about substandard
supplied goods. Even, during crossexamination the defence witness
no.2 has admitted that he has not received any acknowledgement from
the complainant to show that he had given any paper such like chemical
analysis report or any letter, graph, chart etc.,. Therefore, accused have
not produced any probable evidence in respect of goods was supplied as
improve or substandard. The accused no.2 and 3 are responsible to
day to day affairs of accused no.1 being the directors. The accused no.2
and 3 also have signed the disputed cheques. The first time accused has
taken the defence of crossexamination that the cheques are misused by
the complainant neither the accused have given any reply notice or not
filed any complaint in this regard to the police station as well as
particular of the accused prima facie shows that this acceptancy about
legal debt in the disputed cheques.
14. From the entire defence and evidence of the accused and
the crossexamination of the accused it appears that the case of
complainant is more probable than the defence of the accused. The
defence taken by the accused that the goods are substandard is bald
statement. There is no substance in the argument.
15. In this circumstances, the complainant has proved its case
against the accused. The evidence tendered of the complainant is
believable and defence taken by the accused have not probable and
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failed to rebut the presumption. Hence, I am of the view and answered
Points No.(1) and (2) are in the affirmative.
AS TO POINT NO.3:
16. In view of finding of the Points no.1 and 2 it is clear that
the complainant have proved that the accused have committed the
offence punishable under Sections 138 r/w. 141 of the Negotiable
Instruments Act. Therefore, the accused have liable to be convicted.
Hence, I stopped to here the parties on the quantum of the sentence.
Sd/
(A. I. Shaikh)
Mumbai. Metropolitan Magistrate,
Dated: 18/03/2023 44th Court, Andheri, Mumbai.
Hearing on the point of sentence:
17. Inspite of repeatedly called neither accused nor their
advocate appeared in this matter. Record show that accused have
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 persons. By his conduct accused
have waived off his chance to submit on the point of sentence. The
offence Punishable under Section 138 r/w. 141 of the Negotiable
Instruments 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.
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18. 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 case. In fact in present
cse, inspite of any speaking provisions, accused were given chance to
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, this court proceeds further in the absence of accused
persons. On point of sentence complainant has submitted that
maximum sentence of imprisonment and find amount be imposed on
accused persons. She also prayed for compensation.
19. The purpose behind making the Section 138 of the N. I. Act
is a penal provision is to restore credibility of the cheque as trustworthy
substitute for cash payment and ensure smooth and proper functioning
of business transaction. In the present case the accused has deliberately
issued the cheque without arranging for the amount mentioned therein.
The purpose behind the “Act” is taken into consideration, deterrent
sentence coupled with fine amount as a compensation will serve the
purpose. Complainant has filed the present case against the accused
since more than eight years. Therefore, I proceed to pass the following
order:
ORDER
1. Accused no.1 M/s.Sonal Plassrub Industries Pvt. Ltd., is
company and its directors, accused no.2 Mr. Manish
Anilkumar Purecha and accused no.3 Mr. Prashant
Keshavji Purecha are hereby convicted for the offence
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punishable under Sections 138 r/w. 141 of Negotiable
Instruments Act vide provision of Section 255 (2) of the
Code of Criminal Procedure, 1973.
2. Accused no.2 and 3 are sentenced to suffer simple
imprisonment for period of three months each and
accused no.2 and 3 shall pay jointly and severally
compensation of Rs.72,00,000/ (Rupees Seventy Two
Lacs Only) to the complainant vide Section 357(3) of the
Code of Criminal Procedure, in default of payment of
compensation, accused shall suffer further simple
imprisonment for the period of one month each.
3. The amount of compensation realized from the accused
shall paid to the complainant, subject to expiry of the
appeal period or the orders of Honourable Appellate
Court (if any).
4. Accused to surrender their bail bonds.
5. Today i.e. on the date of judgment accused remained
absent, hence issue standing Nonbailable warrant
against the accused for their arrest through concerned
police station for execution of sentence in view of
Section 418 (2) of Cr. P.C.
6. 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.
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7. Dictated and pronounced in open Court.
(A. I. Shaikh)
Date : 18.03.2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
Dictated on : 18.03.2023
Transcribed on: 18.03.2023
Signed on: 18.03.2023
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