Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 4906/SS/2018
Filed on : 10/12/2018
Registered on : 10/12/2018
Decided on : 24/11/2023
Duration : 04Y. 11M. 14D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 4906/SS/2018
CNR: MHMM190134812018
Exh. No.
M/s. KMG Ceramics India Pvt. Ltd.
A Company registered under the Companies Act,
having address at 001, Manav Mansion,
Sarojini Road, Next to Mc. Donalds, VileParle (W),
Mumbai – 400 056 through authorized representative
Mr. Bipin Amritlal Punamiya.
Age : 50 years …Complainant
Versus
Sachin Leeladhar Gupte.
Prop Of Shree Ganesh Ceramica,
Plot No. 384, 2nd floor, Rukmini Sadan,
Sai Section Road, Ambernath (E),
Thane : 421501. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Sandip Bind for the complainant
Advocate Mr. Manish Kocharekar for accused.
-- 1 of 11 --
2 C. C. No. 4906/SS/2018
JUDGMENT	JUDGMENT
(Delivered on 24/11/2023)
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] Complainant is a private limited company and filed this
complaint through his Assistant General Manager and authorized
person Mr. Bipin Punamiya. Accused had purchased tiles under various
invoices from the complainant and for that, he was liable to pay an
amount of Rs. 4,25,957/. In order to pay this amount, he issued
cheque bearing no. 005146 dated 04/10/2018 drawn from his account
maintained with Dena Bank, Ulhasnagar. Complainant presented said
cheque for clearance, however it returned unpaid vide memo dated
05/10/2018 for a reason “Funds Insufficient”.
3] After dishonored of abovementioned cheque, complainant issued
statutory demand notice to accused on 26/10/2018 by RPAD, calling
upon accused to pay the cheque amount, within stipulated time. Notice
was duly served upon accused on 29/10/2018. 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 10/12/2018.
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.
-- 2 of 11 --
3 C. C. No. 4906/SS/2018
5] In order to prove guilt of accused, complainant examined its
representative Mr. Bipin Punamiya (C.W. 1) by filing his affidavit in lieu
of examinationinchief at Exh. 13, vide section 145 of the Negotiable
Instrument Act. In addition to oral evidence, complainant has relied
upon following documentary evidence:
Description of documents Exh. No.
Ledger account statement Exh. 22
Original cheque Exh. 23
Cheque returned memo Exh. 24
Office copy of notice Exh. 25
Postal receipt Exh. 26
Returned envelope Exh. 27
Notice from envelope Exh. 28
6] 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 his
defence neither examined himself nor any witness.
7] Complainant has filed his written notes of argument at Exh. 40,
while Ld. Advocate for accused has filed his written notes of argument
at Exh. 41.
8] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of 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:
-- 3 of 11 --
4 C. C. No. 4906/SS/2018
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 “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
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
admitted/undisputed facts of this case.
-- 4 of 11 --
5 C. C. No. 4906/SS/2018
Admittedly disputed cheque has drawn from the
account of accused and it bears his 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.
118 and 139 of the N.I. Act.
-- 5 of 11 --
6 C. C. No. 4906/SS/2018
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
lawful owner, or from any person in lawful custody thereof, by
-- 6 of 11 --
7 C. C. No. 4906/SS/2018
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,
the burden of proof as to cheque has not been issued as a legal debt or
-- 7 of 11 --
8 C. C. No. 4906/SS/2018
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 its
representative Mr. Bipin Punamiya (C.W.1) by filing his affidavit of
examinationinchief at Exh. 13, wherein he has reiterated his case from
the complaint. His evidence shows that, he had supplied tiles worth Rs.
4,25,957/ to the accused and for payment of said amount accused had
issued disputed cheque. In support of his oral argument, he has
produced on record ledger account at Exh. 22 and original cheque at
Exh. 23.
14] Ld. Advocate for accused conducted crossexamination of
complainant at length. In crossexamination it has come on record that,
accused was the dealer of the complainant company. His evidence
further shows that, complainant company execute agreement with the
dealer, however dealership agreement has not been produced on
-- 8 of 11 --
9 C. C. No. 4906/SS/2018
record. He further admitted that, disputed cheque was issued by the
accused by way of security purpose. He has produced on record one
more cheque which was issued by the accused for security purpose. He
further admitted that, both cheques were given by the accused at the
time of execution of agreement. However, no agreement is produced
on record. It appears that lateron complainant has produced on record
dealership registration form. Witness has denied suggestion given on
the part of accused that, approximately 20% material were damaged
during the transport and hence payment in respect of those material
was waved by the complainant.
15] It is necessary to note here that, in crossexamination witness has
admitted that, both cheques were issued in the year 2016 but in his
affidavit, it is mentioned that accused handed over cheques in the year
2018. He further admitted that, complainant has not produced on
record delivery challan, copy of Lorry receipt or any other document of
transportation showing that goods were delivered. He further admitted
that, accused had issued cheques without mentioning amount and date.
16] Heard Ld. Advocate for both parties and perused written notes of
argument. As discussed earlier, complainant company had obtained
blank signed cheques from the accused in the year 2016 and out of
those cheques, one cheque was presented for clearance in the year
2018. Complainant has mentioned date of said transaction as a
14/02/2017 and according to them accused issued cheque on
04/10/2018 but lateron in crossexamination, complainant's witness
has clearly admitted that, said cheque was not issued in the year 2018.
In such circumstances, complainant was expected to give strict proof
-- 9 of 11 --
10 C. C. No. 4906/SS/2018
regarding transaction between the parties. Complainant has neither
produced any invoice, bill, delivery challan or any other document to
show that they had sold out some material to the accused and against
payment of those material, disputed cheque was issued by the accused.
Therefore, argument of Ld. Advocate for accused that, complainant has
misused disputed cheque which was issued by way of security only in
the year 2016 is acceptable and probable. Complainant has failed to
prove to show that cheque amount was outstanding against the
accused. Accused has successfully rebutted presumption u/s .139 of
N.I. Act. In short, complainant has failed to show that, disputed cheque
was issued by the accused for discharging legally enforceable liability.
In result, point no.1 is answered in the Negative.
AS TO POINT NO. 2 TO 5
17] In order to prove that disputed cheque was returned unpaid or
dishonoured, complainant has produced on record cheque returned
memo at Exh. 24, which shows that, disputed cheque was returned
unpaid for reason “Funds Insufficient” in the account of drawer. This
memo bear seal of the bank and therefore it is to be presumed that
cheque was dishonoured for the reason mentioned in the memo.
18] It is matter of record that, memo was dishonoured vide memo
dated 05/10/2018 and complainant has sent demand notice to the
accused on 26/10/2018. Complainant has produced on record postal
receipt which shows that, notice was sent by registered post on correct
address of the accused. Therefore, in view of Section 27 of the General
clauses act, it is to be presumed that, notice was duly served upon
accused. It is a matter of record that, inspite of service of notice,
-- 10 of 11 --
11 C. C. No. 4906/SS/2018
accused has not paid cheque amount to the complainant. Hence,
complainant has filed this complaint on 10/12/2018 i.e. within
limitation. In result, point no. 2 to 5 are answered in the affirmative.
AS TO POINT NO. 6
19] Taking into consideration answer of points Nos. 1, it becomes
clear that, the complainant has failed to prove that disputed cheque was
issued by the accused for discharging legally enforceable liability.
Therefore, accused is entitled for acquittal. In result, I pass following
order:
ORDER
1] Accused Sachin Leeladhar Gupte 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 437 (A) of the Code of Criminal Procedure. Said bail
bonds shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Sd/
Mumbai (K. G. Sawant)
Dt. 24/11/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 24/11/2023
Typed On : 24/11/2023
Signed On : 24/11/2023
-- 11 of 11 --