Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.4471/SS/2018
Filed on : 02/11/2018
Registered on : 02/11/2018
Decided on : 10/05/2024
Duration : 05Y. 06M. 08D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No.4471/SS/2018
CNR: MHMM190137402018
Exh. No.
Shrem Investments Pvt. Ltd.
1101, Viraj Towers, Junction of AndheriKurla Road,
Western Express Highway,
Andheri East, Mumbai – 400 069.
Through its Authorized Signatory Vineet Radheshyam
Taparia. …Complainant
Versus
Mr. Kishor Ladulal Gokhru.
B6, Sanghvi Estate,
Rajendra Prasad Road, Behind Syndicate Bank,
Mulund (W), Mumbai – 400 080.
Also At
Gokhru Mohala,
Post Badnor, Via Ashind,
District Bilwara,
Rajasthan – 311 302. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate for the complainant : Rahul Sachdev and Barkha Shroff.
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Advocate for the accused : Shri. S. N. Imam
JUDGMENT	JUDGMENT
(Delivered on 10/05/2024)
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 incorporated
under the Companies Act 1956 dealing in providing nonbanking
financial services and it is registered with RBI. Present complainant is
filed by the complainant through its authorized representative Mr. Vinit
Taparia. Accused requested for loan of Rs. 2 Crores vide a term sheet,
on such terms and conditions as agreed in the term sheet, dated
03/03/2017. Accused agreed to repay said amount @ 18 % interest per
annum on principal loan of Rs. 2 Crores. In order to pay interest for
the month of July 2018 to September 2018, accused issued following
three cheques for total amount of Rs. 8,10,000/ in favour of
complainant:
Cheque No Dated Drawn On Amount
000079 07/07/2018 HDFC Bank Rs. 2,70,000/
000080 07/08/2018 HDFC Bank Rs. 2,70,000/
000081 07/09/2018 HDFC Bank Rs. 2,70,000/
3] Complainant presented those cheques for clearance,
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however vide memo dated 07/09/2018, all cheques were returned
unpaid for the reason “Funds Insufficient”.
4] After dishonoure of cheques, complainant issued statutory
demand notice to accused on 27/09/2018 calling upon accused to pay
the cheques amount within 15 days from the date of service of notice.
Notice was duly served upon accused on 28/09/2018. 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 02/11/2018.
5] 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.
6] In order to prove guilt of accused, complainant examined
its representative Mr. Vinit Taparia (C.W.1) by filing his affidavit in lieu
of examinationinchief, 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.
Notarized Copy of board resolution Exh. 13
Minutes of Meetings dated 05/08/2016 Exh. 14
Copy of terms Sheet Exh. 15
3 disputed cheques Exh. 16 to 18
Cheque returned memos Exh. 19 to 21
Copy of Statutory notice Exh. 22
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Postal Receipt Exh. 23 to 26
Letter issued by postal department Exh. 27
Returned envelope Exh. 28 to 30
Track report ArticleA collectively
7] After completion of complainant's evidence, statement of
accused vide Section 313 of Cr.P.C. was recorded, wherein accused has
taken defence of falsely implication. In support of his defence, accused
examined himself and he also got examined bank witness Mr. Aniket
Pawar (D.W. 2).
8] Heard Ld. Advocate for both parties and perused the
written notes of argument. 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
cheques were issued by the accused, in
favour of complainant for discharging legal
enforceable liability?
…. In the
Affirmative
2. Does complainant prove that cheques were
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
…. In the
Affirmative
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cheques amount ?
4. Does complainant further prove that inspite
of service of notice accused has failed to pay
cheques 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
Convicted
REASONS
AS TO POINT NO. 1
9] 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
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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.
10] 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
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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.
11] 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
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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.
12] In order to prove his case, complainant examined its
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representative Mr. Vinit Taparia (C.W.1) by filing his affidavit of
examinationinchief as per Section 145 of N.I.Act, wherein he has
reiterated his case from the complaint. His evidence shows that,
complainant is a nonbanking financial corporation and it had given
loan of Rs. 2 Crores to the accused. Complainant has produced on
record term sheet to show what was the terms and conditions of the
loan. He also produced on record, disputed cheques issued by the
accused to repay the loan amount.
13] Learned advocate for accused conducted crossexamination
of complainant at length. Through crossexamination of complainant
and by examining himself, accused has taken following defences:
a) In complaint, it is nowhere mentioned that, actually loan
was given to the accused. It is doubtful that, such huge loan amount
was given only on the basis of termsheet.
b) Accused had no capacity to take loan of Rs. 2 Crores and
repay it. Therefore, there was no question of giving loan of Rs. 2 Crores
to the accused.
c) In fact, it was not the loan transaction but it was Hawala
transaction. According to accused, out of loan amount of Rs. 2 Crores
received in his account, an amount of Rs. 50 lacs was transferred to Mr.
Meerchandani, who is a close relative of complainant and Rs.
1,48,00,000/ was transferred in the account of Mr. Dilip Nabhara as
per say of the complainant. In short, it was not the loan transaction and
accused did not receive loan amount of Rs. 2 Crores.
d) At the time of signing of termsheet, complainant took 28
undated cheques from the accused i.e. before disbursement of loan
amount.
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e) Complainant has also obtained 1,300/ shares of K.I.D.
medical system by way of security from the accused. However, these
shares are not returned to accused and there is no any explanation
given by the complainant in respect of those shares.
f) Complainant has not produced original minutes books and
failed to prove authorization of Mr. Vinit Taparia to file this complaint
and lead evidence.
g) Accused has paid approximately Rs. 2 Crores to the
complainant. Mr. Taparia (C.W.1) did not explain against what, said
amount was received by the complainant i.e. whether against the
principal or against the interest portion.
14] Heard Ld. Advocate for both parties at length and gone
through the record. It is the main argument of Ld. Advocate for accused
that, transaction between the parties was not the loan transaction but
on record only it was shown as a loan. According to him, immediately
after, transfer of said amount in the account of accused, it was further
transferred in the account of Mr. Meerchandani, who is fatherinlaw of
the chairman of the complainant company namely Hitesh Chatwal.
According to accused, remaining amount was transferred in the account
of Hitesh Chatwal. In his defence evidence, accused has put a
complicated story and stated that, one Mr. Harish Chabalani introduced
him with M.D. of complainant company namely Hitesh Chatwal. His
evidence further shows that, he was informed that, complainant
company is in need of cash in their company and hence requested
accused to give some cash and promised to transfer said amount in the
account of accused. Accordingly, on 27/03/2017, an amount of Rs.
27,00,000/ was transferred in the account of accused. Thereafter, as
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per say of Mr. Chatwal and Dilip Nabeda, accused transferred an
amount of Rs. 25,00,000/ to reliance securities. Mr. Nabeda brought
share worth Rs. 25,00,000/ in the account of accused and thereafter
Mr. Nabeda gave cash of Rs. 25,00,000/ to Hitesh Chatwal. Thus,
accused has taken defence that, an amount of Rs. 25,00,000/ received
in his account, was given to Mr. Nabeda and accordingly Mr. Nabeda
purchased share of that amount and gave same amount in cash to Mr.
Chatwal i.e. M.D. of complainant company.
15] It is further case of accused that, again on 29/03/2017
complainant company transferred an amount of Rs. 50,00,000/ in his
account and on the say of Mr. Chatwal, that amount was transferred to
Mr. Ashok Meerchandani through cheque. According to accused, Mr.
Meerchandani was supposed to give said amount of Rs. 50,00,000/ in
cash to Mr. Chatwal.
16] Again on 31/03/2017, complainant company transferred
an amount of Rs. 50,00,000/ in the account of accused and on the
same day it was transferred to the reliance security and this time also
Mr. Dilip Nabeda purchased share of Rs. 50,00,000/ in the account of
accused and thereafter Mr. Nabeda gave cash of Rs. 50,00,000/ to
Hitesh Chatwal. His evidence further shows that, Hitesh Chatwal
confirmed with the accused for receipt of Rs. 50,00,000/ in cash from
Nabeda.
17] Evidence of accused shows that, again on 11/04/2017,
complainant company transferred an amount of Rs. 73,00,000/ in his
account and it was transferred by him to Zeroda Broker. Again on the
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same day Mr. Nabeda purchased shares of Rs. 73,00,000/ in the Demat
account of accused on the say of Mr. Hitesh Chatwal. His evidence
further shows that, like earlier transaction this time also Mr. Nabeda
gave an amount of Rs. 73,00,000/ in cash to Mr. Chatwal.
18] Thus, evidence of accused shows that, amount was transferred in
his account and on the say of Mr. Chatwal, shares were purchased in his
Demat account by Mr. Nabeda. According to him, Nabeda purchased
share as per say of Mr. Chatwal and gave that amount in cash to Mr.
Chatwal. His evidence further shows that, against above mentioned
transaction, he was supposed to sale the shares which were purchased
in his Demat account. Accused has further stated that, Mr. Nabeda gave
an amount of Rs. 1,48,00,000/ in cash to Hitesh Chatwal and Mr.
Chatwal had received said amount on behalf of Shrem Investment i.e.
the complainant company. Accused has also deposed that, in order to
show reverse entry in the account, he transferred an amount of Rs.
6,57,740/ in the account of Shrem Investment but complainant did not
give that amount in cash to the accused.
19] Before discussing about crossexamination of accused, it would be
proper to see crossexamination of complainant conducted on the part
of accused. In crossexamination, Mr. Taparia (C.W.1) has admitted
that, Mr. Hitesh Chatwal is the director of complainant company and
Mr. Meerchandani is his fatherinlaw. He further admitted that, before
disbursing loan, complainant company verify the eligibility of customer.
He further admitted that, accused had not filled up any form for the
loan since complainant is not having any printed format to that effect.
He further stated that, accused has not repaid any amount against the
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repayment of principal loan amount. When he was question that, on
09/05/2017 accused has paid an amount of Rs. 2,37,150/ to the
complainant against the repayment of loan, to that, Mr. Taparia replied
that, it was against the payment of interest and not for repayment of
principal loan amount.
20] Mr. Taparia (C.W.1) has further admitted that, in complaint or
affidavit, he did not mention that, said amount was received by the
complainant against the interest. He further admitted that, on
11/07/2017 accused has given an amount of Rs. 1,00,000/ to the
complainant. However, witness has denied suggestion that, said
amount was given for repayment of principal loan amount. It has come
in the evidence of Mr. Taparia that, complainant company has received
24 cheques, each for an amount of Rs. 2,70,000/ against the interest
from the accused and three cheques for total amount of Rs. 2 Crores
against the repayment of principal loan amount. He further admitted
that, out of 24 cheques for interest amount, complainant has filed cases
against accused for 22 cheques each for an amount of Rs. 2,70,000/.
21] In complaint or affidavit, it is nowhere mentioned that,
complainant has paid an amount of Rs. 2 Crores to the accused.
However, it appears to be some error in drafting. In fact, if we take the
entire pleading and crossexamination of accused, it becomes clear that,
an amount of Rs. 2 Crores was transferred in the account of accused. It
was asked to witness that, M.D. of complainant company namely Hitesh
Chatwal has received an amount of Rs. 1,48,00,000/ from Dilip
Nabeda in cash and it was paid by Nabeda on behalf of accused i.e.
against the amount credited in the account of accused. However, Mr.
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Taparia answered that, he is not aware about it. He further stated that,
he is now aware that, on the say of Mr. Chatwal, an amount of Rs.
50,00,000/ was transferred by the accused in the account of Mr.
Meerchandani. Lateron witness stated that, that transaction is not at all
concerned with the present loan transaction, which has taken place
between complainant company and accused.
22] Mr. Taparia (C.W. 1) has further stated that, from April 2017 to
February 2018, accused has transferred an amount of Rs. 6,52,740/ in
the account of complainant. He further admitted that, he has not
produced any document on record to show that, accused had capacity
to repay loan amount in monthly installment of Rs. 2,70,000/. He
further admitted that, till 03/03/2017 i.e. till the signing of term sheet,
loan amount was not disbursed in the account of accused.
23] From perusal of entire crossexamination of complainant, it
appears that, accused has taken defence that, an amount of Rs.
1,48,00,000/ received in his account, was already repaid to Mr.
Chatwal in cash through Mr. Dilip Nabeda. It is also his argument that,
balance loan amount of Rs. 50,00,000/ was transferred by him to Mr.
Meerchandani and same has been received by Mr. Chatwal in cash from
Mr. Meerchandani. Accused also got examined bank witness Mr. Aniket
Pawar (D. W. No. 2) to show that, on 29/03/2017, an amount of Rs.
50,00,000/ has been transferred from the account of accused to
account of Meerchandani. Except this nothing else has come on record
through the evidence of banker.
24] First of all it is necessary to see, whether complainant company
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has given loan of Rs. 2 crores to the accused. From perusal of term
sheet filed at Exh. 16 and from going through evidence of Mr. Taparia
as well as evidence of accused, it becomes clear that, complainant
company has given loan of Rs. 2 Crores to the accused. Said amount
was actually disbursed and it was credited in the account of accused.
Suggestion given by the accused in crossexamination that, some
amount has been repaid by him and it was against the repayment of
principal loan amount, shows that, there was loan transaction between
the parties. If it is contention of accused that, he has paid some amount
to complainant against the repayment of principal and if complainant is
saying that, it is against the payment of interest, then certainly it was
the loan transaction. It is different thing whether said amount was
paid by the accused against repayment of principal or for payment of
interest, but certainly it shows that, there was loan transaction between
complainant and accused.
25] As discussed earlier, accused has taken various defences and tried
to say that, it was Hawala transaction. Ld. Advocate for accused argued
that, though amount was credited in the account of accused, accused is
not beneficiary of said loan. He further argued that, complainant has
not verified repaying capacity of the accused and without executing
proper documents, amount was transferred in the account of accused.
According to him, it shows that, there was no loan transaction between
the parties but it was something else. Merely because complainant has
granted the loan without verifying financial capacity of repayment of
the accused is no ground to say that it was not loan transaction. It is
needless to say that in competition of business, now a days many
private banks and NBFC's are giving loan to the customer without
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taking any security and without verifying their capacity. Therefore,
argument of Ld. Advocate for accused that, it was not loan transaction
on the ground that, complainant company has not verified capacity of
repayment of accused and without executing necessary documents
disbursed loan to the accused is not acceptable.
26] Admittedly, loan amount has been given by the complainant to
the accused and not by Mr. Chatwal. Complainant is a private limited
company i.e. separate entity from its directors or bodyholders. It is not
the case of accused that, amount was given back to the complainant
company but according to accused it was given in cash to Mr. Chatwal.
Mr. Chatwal is not the complainant company. Besides that, there is a
absolutely no evidence on record to show that, Mr. Nabeda has paid an
amount of Rs 1,48,00,000/ in cash to Mr. Chatwal. There is no
evidence to show that, Mr. Meerchandani has given an amount of Rs.
50,00,000/ in cash to Mr. Chatwal. Therefore, contention of Ld.
Advocate for accused that, it was Hawala transaction and accused has
repaid entire amount to Mr. Chatwal, which was credited in the account
of accused is not acceptable. Accused did not examine to Mr. Chatwal,
mr. Nabeda or Mr. Meerchandani as his witness to show that, it was not
the loan transaction and whatever amount received in the account of
accused from complainant company, has been repaid by him in cash to
complainant. As discussed earlier, there is absolutely no evidence to
prove defence taken by the accused. There is no evidence on record to
show that, accused has repaid principal loan amount of Rs. 2 Crores to
the complainant.
27] So far as crossexamination of accused is concerned, he admitted
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execution of termsheet at Exh. 16. He further admitted that, as per
termsheet, he received entire payment mentioned therein. He further
admitted that, except termsheet, no other document was executed
between him and complainant. In termsheet, it is not mentioned that,
he should repay said payment in cash to Mr. Meerchandani or Mr.
Nabeda. He further admitted that, he has not produced any
documentary evidence on record to show what happened in respect of
those shares which were purchased in his demat account by Mr. Nabeda
for an amount of Rs. 1,48,00,000/. He further admitted that, he is
aware about the rules of SEBI and as per that rules, shares cannot be
purchased in cash or there cannot be Benami transaction. He also
admitted that, complainant company never communicated to him to
hand over cash to any other person.
28] Thus, accused has not produced any documentary evidence in
support of his defence. Theory of conversation of cheque to cash
putforth by the accused is no appears to be probable and acceptable.
For the sake of argument, if it is presumed that, story putforth by the
accused is true and correct, then also accused is liable to repay the
amount which was taken by him from the complainant company. As
discussed earlier, company and its directors are separate entity.
Therefore, accused has paid some amount to the director of
complainant company cannot be treated as a payment to complainant
company for repayment of loan amount.
29] According to accused, he has repaid an amount of Rs. 6,52,740/.
In crossexamination, complainant has also admitted that, in between
April 2017 to February 2018, accused has paid an amount of Rs.
6,52,740/ and it was against the payment of interest. Admittedly, as
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per term sheet, rate of interest for said loan was 18 % per annum.
Thus, interest for one year comes to Rs. 36,00,000/ and per month it
comes to Rs. 3,00,000/. If accused has paid an amount of Rs.
6,52,740/ , against the interest, that means he has paid interest for
three months approximately. It has come on record that, accused has
paid interest upto February 2018 only, disputed cheques are issued to
pay interest for the month of July 2018 to September 2018. It is not t
he case of accused that, he has paid interest for the said period.
Therefore, it remains proved that, disputed cheques were issued by t he
accused for the payment of interest i.e. for discharging legally
enforceable liability. In result, point No. 1 is answered in the
affirmative.
AS TO POINT NO. 2 TO 5
30] In order to prove that, disputed cheques were returned
unpaid for reason “Funds Insufficient”, complainant has produced on
record cheque returned memos at Exh. 19 to 21. These memos bears
seal of the bank and signature of bank officers. Therefore, as per
Section 146 of N.I. Act, it is to be presumed that disputed cheques were
dishonoured for reason “Funds Insufficient”.
31] It is a matter of record that, cheques were dishonoured
vide memos dated 07/09/2018. Complainant has sent demand notice
on 27/09/2018 i.e. within 30 days. Complainant has produced on
record postal A.D. card which shows that, notice sent on B/6, Sanghavi
Estate Address was served upon accused while notice sent on Gokharu
Mohhalla, Rajasthan was returned unserved with remark “Left”.
Accused has denied service of demand notice. However, he did not
come before court with a evidence showing what was his correct
address. Therefore, it becomes clear that, notice was duly served upon
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accused. Admittedly, accused did not pay cheque amount within 15
days from the date of service of notice. Complainant has filed this
complaint on 02/11/2018 i.e. within limitation. In result point Nos.2 to
5 are answered in the affirmative.
AS TO POINT NO.6
32] 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 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. Sd/
(K. G. Sawant)
Date : 10/05/2024 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
33] I explained to accused that, he 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 his stand on the nature and quantum of the sentence, if any.
34] Upon asking on the point of sentence, accused submitted
that, his old aged parents are depends on him. His mother is suffering
from breast Cancer. I am the only earning member of family and my
wife and children are dependent on me. Hence, prayed to take lenient
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20 C. C. No.4471/SS/2018
view.
35] On the other hand, complainant and his advocate prayed to
impose maximum punishment as per law.
36] Heard both sides and gone through record. At the time of
imposing sentence, court has to consider nature and gravity of the
offence, conduct of accused, period since which case is pending and the
purpose of legislature behind enactment of Section 138 of N. I. Act by
providing fine as well as sentence. In the case at hand, matter is
pending since 2019. Already four years have been passed from the date
of filing of case. Considering nature of offence, nature of transaction,
cheque amount and purpose of legislature behind enactment of Section
138 of N.I.Act, I proceed to pass following order:
ORDER
i. The accused Mr. Kishor Ladulal Gokhru 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 he shall pay compensation of Rs. 10,50,000/
(Rs. Ten Lacs Fifty Thousands) 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 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
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21 C. C. No.4471/SS/2018
orders of Honourable Appellate Court (if any).
iv. Accused to surrender his 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. Dictated and pronounced in open court.
Sd/
Mumbai (K. G. Sawant)
Dt. 10/05/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 10/05/2024
Typed On : 10/05/2024
Signed On : 10/05/2024
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