Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 4843/SS/2018
CNR No. : MHMM19-014424-2018
Received On : 05/12/2018
Registered On : 05/12/2018
Decided On : 15/07/2024
Duration :Y-05, M-07, D-10
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS), ANDHERI
(Court No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 4843/SS/2018 Exh. 57
Macleods Pharmaceuticals Ltd.
A Company incorporated under the
Companies Act, 1956 having its Registered
Office at Atlanta Arcade, 3rd floor, Church Road,
Near Leela Hotel, Andheri-Kurla Road,
Andheri (East), Mumbai – 400 059
Through its Asst. General Manager -Sales
& Admn., Mr. Atul Ashok Khare,
aged about 56 years, -- Complainant
Versus
Mr. Raj Kumar Srivastava.
Proprietor,
M/s. Rishab Pharmaceuticals, Shop No. 2,
Hari Om Market, 30 Rampuri, Unnao,
U.P. - 209801. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Mr. Ravindra Tandekar, for the complainant.
Mr. Sabre Alam, for the accused
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JUDGMENT
(Delivered on 15th of July 2024)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“N.I Act” for short) for dishonor of a cheque of Rs. 17,17,298/-.
The brief facts of complainant's case are as under:
02. As per the submission of the complainant, complainant
company is a public limited company registered under Companies Act,
1956. Complainant company is engaged in the business of
manufacturing, sale and marketing of pharmaceutical product. The
accused is a proprietor of M/s. Rishab Pharmaceuticals a proprietary
concern and also engaged in the business of sale of pharmaceutical
products. As per the purchase order placed by the accused, the
complainant company had supplied pharmaceutical products of Rs.
17,17,298/- to the accused. The goods were delivered to the accused.
The complainant has given the details of invoices, dates and amounts in
the complaint. The accused for the discharge of said liability against
the invoices raised on him, had issued a cheque bearing No. 206667 of
Rs. 17,17,298/- on 22/10/2018. Thereafter, the complainant deposited
the above said cheque for encashment in his ICICI bank, Andheri (E),
Mumbai on 23/10/2018. The same was returned unpaid from drawee
bank with endorsement of 'Funds Insufficient'. Accordingly, the ICICI
Bank issued memo dated 25/10/2018. Thereafter, he contacted the
accused and requested to pay cheque amount but the accused
intentionally not paid said amount. Thereafter, complainant issued
demand notice dated 30/10/2018 to accused. The notice was duly
served on the accused but accused failed to pay cheque amount within
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stipulated period. Hence, the complainant constrained to file present
complaint.
03. After recording statement of the complainant and perusing
all documents produced on record, process came to be issued against
the accused for the above offence. In response to summons, the accused
appeared. Particulars of offence recorded below Exh. 15 which were
read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
04. The accused did not conduct the cross-examination of
complainant. The complainant has closed his evidence by filling
evidence close pursis below Exh. 39 and thereafter the matter was kept
for the statement of accused U/s. 313 of the Code of Criminal
Procedure, 1972 (in short 'the Code').
05. The statement of accused under Section 313 of the Code was
recorded vide Exh. 44. In his statement U/s. 313 of the Code, accused
submitted that, he had issued blank cheque. He further submitted that,
he has repaid an amount of Rs. 4,80,000/- approximately and as per his
view an amount of Rs. 12,00,000/- approximately is payable by him to
complainant company.
06. Heard Ld. Counsel Shri. Ravindra Tandekar for
complainant and also perused and considered the written notes of
argument filed by complainant at Exh. 56. Heard oral argument of Ld.
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Counsel for accused Mr. Sabre Alam.
07. From perusal of complaint and record, following points
arise for my determination. I have recorded my finding and reasons
thereon as under:
Sr. No. Points Findings.
1. Does the complainant prove that cheque No.
206667 (Exh. 33) was drawn by accused for
legally recoverable debt or other liability?
Yes.
2.
Does the complainant prove that the said
cheque returned unpaid for the reason “Funds
Insufficient”?
Yes.
3.
Does the complainant prove that he had issued
demand notice to the accused within
limitation demanding cheque amount?
Yes.
4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under section 138 of the
Negotiable Instrument Act ?
Yes.
6. What order? The accused
is convicted.
REASONS
08. In order to prove his case, the complainant has filed
evidence of Mr. Atul Ashok Khare, who is Asst. General Manager -Sales
& Admn. Of complainant company at Exh. 17. The complainant also
placed his reliance upon following documents:
Description of documents Exh. No.
Extract of resolution Exh. 20
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Verified copy of minute book Exh. 21
Invoices Exh. 22 to 31
Statement of account Exh. 32
original cheque Exh. 33
Cheque depositing slip Exh. 34
Cheque returned memo Exh. 35
Office copy of notice Exh. 36
Postal receipt Exh. 37
Email dated 13/11/2018 accompanied with
certificate u/s. 65 (B)
Exh. 38
As to Point No.1:-
09. In order to prove the allegation leveled against the
accused, the complainant has filed evidence affidavit of Mr. Atul Ashok
Khare (C.W.1) who is Asst. General Manager -Sales & Admn. Of
complainant company. As per his evidence, complainant company is
engaged in the business of manufacturing, sale and marketing of
pharmaceutical products. Accused is a proprietor of M/s. Rishab
Pharmaceuticals, a proprietary concerned and engaged in the business
of sale of pharmaceutical products. As per the order of accused,
complainant company had supplied pharmaceutical products of Rs.
17,17,298/- to the accused. As per the evidence of complainant, he has
filed the invoices at Exh. 22 to 31 and also filed statement of account at
Exh. 32 to prove that, he has supplied the pharmaceutical products to
the accused. As per the evidence of complainant, the amount of Rs.
17,17,298/- is due from the accused. The accused had issued cheque
No. 206667 of Rs. 17,17,298/- dated 22/10/2018 for the payment of
due amount. Thereafter, the complainant deposited the said cheque for
encashment in his ICICI bank, Andheri (E) branch, Mumbai on
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23/10/2018. The same was returned unpaid from drawee bank with an
endorsement “Funds Insufficient”.
10. The accused has not conducted the cross-examination of
the complainant. Further it seems from the record that, accused has
replied to the demand notice by sending email and admitted his
liability.
11. Before adverting towards of the merit of case, it is
necessary to deal with some legal principle regarding presumptions
contemplated in Section 118 and 139 of N.I. Act and standards of proof
for its establishment or also for rebuttal. The Hon'ble Supreme Court of
India in
T. Vasanta Kumar v/s. Vijay Kumar (2015) 8 SCC 378 has held
that, “the presumption mandated by Section 139 includes a
presumption that there exists a legally enforceable debt or liability. This
is of course in the nature of a rebuttable presumption and it is open to
the accused to raise a defence wherein the existence of a legally
enforceable debt or liability can be contested. However, there can be no
doubt that there is an initial presumption which favours the respondent
complainant”.
12. The Hon’ble Supreme Court of India in the case
Rangappa V.
Mohan reported in AIR 2010 SC 1898, has held that, “
the presumption
mandated by Section 139 of the Act does indeed include the existence
of legally enforceable debt or liability.”. Ld. Counsel for the complainant
has placed reliance on the decision of Hon’ble Supreme Court of India
in
APS Forex services Pvt. Ltd. V/s. Shakti International Fashion Linkers
and others, Criminal appeal no. 271 and 272 of 2020. He further placed
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reliance on the decision of Hon’ble Supreme Court of India in Goaplast
Pvt. Ltd. V/s. Chico Ursula D’souza and other, Criminal appeal no. 315
and 316- 321 of 2003, decided on 07/03/2003. In the present case, the
accused has not conducted the cross-examination of complainant.
Accused has sent email to complainant and sent reply to the demand
notice of complainant. In his email he has admitted liability and only
asked for time. The statement of accused U/s. 313 of the Code was
recorded and wherein the accused has stated that, he has issued blank
cheque. Further, submitted that, he had repaid approximately an
amount of Rs. 4,80,000/-. Further submitted that, as per his view, he is
liable to pay an amount of Rs. 12,00,000/- approximately. Therefore, it
can be gathered that, accused has not challenged the signature from
cheque (Exh.33). This shows that, the signature of accused from cheque
(Exh.33) is not in dispute. Therefore, the presumptions under Section
118 and 138 of the Act are raised in favor of complainant.
13. The Hon'ble Supreme Court of India in case of
M.S.
Narayan Menon @ Mani V/s. State of Kerala and another (Appeal
(Cri.) 1012 of 1999 decided on 04/07/2006) has laid down the rules
regarding the standards of proof for establishment of case as well as of
rebuttal of defence in the case filed under Section 138 of N.I. Act. The
Hon'ble Supreme Court of India has observed that
“It is not necessary for the defendant to
disprove the existence of consideration by way of direct
evidence. The standard of proof evidently is pre-
ponderance of probabilities. Inference of pre-ponderance of
probabilities can be drawn not only from the materials on
records but also by reference to the circumstances upon
which he relies. Presumption drawn under a statute has
only an evidentiary value. Presumptions are raised in terms
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of the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another.”
14. The Hon'ble Supreme Court of India in case of Sumeti VIJ
V/s. M/s. Paramount Tech Fab, Criminal Appeal No(s) 292 of 2021,
(Arising out of SLP (Crl.) No (s). 8498 of 2019), in which the decision
of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another, 4 (2019)
18 SCC 106 is discussed and wherein it is laid down the procedure as to
how the accused can rebut the presumption under Section118 and 139
of the Act,
“The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and
debt did not exist or that under the particular circumstances
of the case the non-existence of consideration and debt is so
probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory
presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need
not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has to
be brought on record for getting the burden of proof shifted
to the complainant. To disprove the presumptions, the
accused should bring on record such facts and
circumstances, upon consideration of which, the court may
either believe that the consideration and debt did not exist
or their non-existence was so probable that a prudent man
would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
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evidence to prove that the note in question was not
supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied
upon are compelling, the burden may likewise shift again
on to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act. The accused
has also an option to prove the non-existence of
consideration and debt or liability either by letting in
evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in
the complaint, the case set out in the statutory notice and
evidence adduced by the complainant during the trial. Once
such rebuttal evidence is adduced and accepted by the
court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue”.
15. The Hon'ble Bombay High Court in the case of
Vishnu Vs.
State of Maharashtra (Cri. Rev. Application No. 176/2015 decided on
24/01/2019) observed that,
“There cannot be any manner of dispute with
the proposition that once the presumption arising under
Section 118 read with Section 139 of the Act is raised, it can
be rebutted by the accused on preponderance of probability
at the trial. This can be done on the basis of cross-
examination of the complainant and his witnesses, if any,
and/or by leading independent defence evidence.”
16
. As accused has not challenged his signature on the cheque
(Exh. 33), the presumptions under Section 118 and 139 of the Act are
raised in favor of complainant. Therefore, in view of the observations
given in case of Rangappa V/s. Sri Mohan (Cited Supra), the accused
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has to raise a probable defence which creates doubts about the
existence of a legally enforceable debt or liability and the prosecution
can fail. It also makes clear that, mere denial is not sufficient to rebut
the presumption which is raised in favor of complainant. As observed in
the case of
Vishnu Vs. State of Maharashtra (cited supra), accused has
many modes to bring on record his defence e.g. by replying upon
notice, complaint, complainant's evidence and also by mode of cross
examination, his own testimony or of other witnesses, if cross examined
and also through statement of accused recorded under section 313 of
the Code. In the present case, accused did not conduct the cross-
examination of the complainant. Accused has sent email and sent reply
notice to the demand notice of complainant. Accused remained present
for recording of Statement U/s. 313 of the Code and wherein the
accused has stated that, he has issued blank cheque. Further, submitted
that, he had repaid approximately an amount of Rs. 4,80,000/-.
Further submitted that, as per his view, he is liable to pay an amount of
Rs. 12,00,000/- approximately.
17. In the case in hand, as I observed above the accused did
not avail the opportunity available to him to rebut the presumption.
Because the accused did not conduct cross-examination of the
complainant. Ld. Counsel for the accused has submitted that, the
accused was present for the recording of statement U/s. 313 of the
Code and wherein the accused submitted that, he has paid Rs.
4,80,000/- out of due amount. He further submitted that, he has
produced the bank statement to show that, the accused has repaid an
amount of Rs. 4,80,000/-. I have perused the statement of account and
it seems that, the statement of account does not bear stamp and
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signature of bank. Further the accused has not filed certificate U/s. 65
(B) of Indian Evidence Act. The accused has not proved the statement
of account as per the law. Further it is not the case of accused that,
before dishonor of cheque, the said amount was paid by him to the
complainant. I have perused the decision of Hon’ble Supreme Court of
India in Rajneesh Aggarwal V/s. Amit J. Bhalla, Appeal (Cri.) 10 -12 of
2001, decided on 04/01/2001, It has been observed I that :-
So far as the question of deposit of the money during the pendency of
these appeals is concerned, we may state that in course of hearing the
parties wanted to settle the matter in Court and it is in that connection,
to prove the bonafide, the respondent deposited the amount covered
under all the three cheques in the Court, but the complainant's counsel
insisted that if there is going to be a settlement, then all the pending
cases between the parties should be settled, which was, however, not
agreed to by the respondent and, therefore, the matter could not be
settled. So far as the criminal complaint is concerned, once the offence is
committed, any payment made subsequent thereto will not absolve the
accused of the liability of criminal offence, though in the matter of
awarding of sentence, it may have some effect on the Courts trying the
offence. But by no stretch of imagination, a criminal proceeding could be
quashed on account of deposit of money in the Court or that an order of
quashing of criminal proceeding, which is otherwise unsustainable in law,
could be sustained because of the deposit of money in this Court. In this
view of the matter, the so-called deposit of money by the respondent in
this Court is of no consequence.
18. Per-contra, the complainant has produced the invoices at
Exh. 22 to 31 and statement of account at Exh. 32. As I discussed above,
the accused has not denied his liability but he only submitted in the
statement U/s. 313 of the Code that, as per his view he is only liable to
pay an amount of Rs. 12,00,000/- approximately. He has not brought
on record any material to prove this fact. On the contrary, the
documents produced by the complainant in support of his contention
and to show that, the cheque was issued for payment of part amount of
materials supplied by him. Ld. Counsel for the complainant submitted
that, if the accused neither raises probable defence nor able to contest
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existence of legally enforceable debt or liability, obviously presumption
U/s. 139 of N.I.Act regarding commission of offence comes into play if
same is not rebutted with regard to the materials submitted by the
complainant. He placed reliance on the decision of Hon’ble Supreme
Court of India in Laxmi Dyechem V/s. State of Gujrat and Others,
Criminal appeal No. 1870- 1909 of 2012 (Arising out of SLP (Cri.) Nos.
1740-1779 of 2011) and Criminal Appeals No. 1910- 1949 of 2012
(Arising out of SLP (Cri.) Nos. 1780-1819 of 2011) decided on
27/11/2012. I have perused the cited decision. Therefore, it becomes
clear that the accused has utterly failed to rebut the presumption raised
under section 118 & 139 of the Act. Therefore, I hold that the
complainant has duly proved that accused has issued the subject cheque
from his account in favour of the complainant towards the legally
enforceable debt. Hence, point No. 1 is answered in the “affirmative”.
As to Point No. 2:-
19. As per contentions and evidence of complainant, the
cheque No. 206667 (Exh. 33) was presented for encashment. However,
the cheque was returned with remark as 'Funds Insufficient”. In support
of said contentions, the complainant produced the cheque return bank
memo of ICICI Bank, Andheri (E) branch, Mumbai (Exh.35). It is seen
from the bank memo (Exh. 35) that, the cheque was returned with
endorsement 'Funds Insufficient'. The memo (Exh. 35) bears seal and
signature of concerned bank. Therefore, here it is necessary to mention
section 146 of the Negotiable Instrument Act;
“
The Court shall, in respect of every proceeding
under this Chapter, on production of bank's slip or memo
having thereon the official mark denoting that the cheque
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has been dishonored, presume the fact of dishonor of
such cheque, unless and until such fact is disproved”.
20. So, as per the aforesaid provision, the bank memo (Exh.
35), is having presumptive value as per Section 146 of the N.I Act.
Admittedly, the said presumption is rebuttable. However, nothing is
brought on record by the accused to rebut the presumption in respect of
bank memo (Exh. 35). After perusal of said memo, it is seen that the
cheque No. 206667 (Exh. 33) was dishonored for reason 'Funds
Insufficient'. However, nothing brought by the accused on record to
show his bonafide as well as also to show that at the relevant time, the
amount mentioned in the cheque was pending in his account. Hence, no
hurdle to held that the cheque was dishonor with reason 'Funds
Insufficient'. Consequently, point No. 2 is answered in the “affirmative”.
As to Point Nos. 3 and 4 :-
21. As per evidence of Mr. Atul Ashok Khare (C.W. 1), after
dishonor of cheque of Rs. 17,17,298/- (Exh. 33), he issued demand
notice dated 30/10/2018 (Exh.36). The complainant has filed the
postal receipt at Exh. 37 to show that, the notice was issued on the
correct address of the accused. In support of said contention, the
complainant produced demand notice dated 30/10/2018 (Exh. 36),
postal receipt (Exh. 37) and postal track report. Upon perusal of
demand notice (Exh. 36) and postal receipt (Exh. 37) it is seen that,
the complainant issued notice on 30/10/2018 to the accused on the
following address :-
To,
Mr. Raj Kumar Srivastava
M/s. Rishab Pharmaceuticals
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Shop No. 2,
Hari Om Market,
30 Rampuri,
Unnao (U.P.)
22. Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipt at Exh. 37 that, the said notice
was sent on the correct address. The address mentioned on the email
sent and reply sent by the accused to the complainant is the same.
Therefore, there is no hurdle to held that complainant sent demand
notice on the correct address of accused. Here, it is necessary to
mention the observations given by Hon'ble Supreme Court of India in
case of C. C. Alavi Haji V/s. Palapetty Muhammeed and anr reported in
All MR (Cri.) 2007. Wherein it is observed by Hon'ble Supreme Court of
India that,
“15. Insofar as the question of disclosure of necessary particulars
with regard to the issue of notice in terms of proviso (b) of Section
138 of the Act, in order to enable the Court to draw presumption
or inference either under Section 27 of the G.C. Act or Section 114
of the Evidence Act, is concerned, there is no material difference
between the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing the drawer
of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands
complied with. It is needless to emphasise that the complaint must
contain basic facts regarding the mode and manner of the issuance
of notice to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section 138 of
the Act, the Court is required to be prima facie satisfied that a case
under the said Section is made out and the aforenoted mandatory
statutory procedural requirements have been complied with. It is
then for the drawer to rebut the presumption about the service of
notice and show that he had no knowledge that the notice was
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
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interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of
notice is a clear departure from the rule of Criminal Law, where
there is no stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not receive the
notice sent by post, can, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of summons
(by receiving a copy of complaint with the summons) and,
therefore, the complaint is liable to be rejected. A person who does
not pay within 15 days of receipt of the summons from the Court
along with the copy of the complaint under Section 138 of the Act,
cannot obviously contend that there was no proper service of
notice as required under Section 138, by ignoring statutory
presumption to the contrary under Section 27 of the G.C. Act and
Section 114 of the Evidence Act. In our view, any other
interpretation of the proviso would defeat the very object of the
legislation. As observed in Bhaskarans case (supra), if the giving of
notice in the context of Clause (b) of the proviso was the same as
the receipt of notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section 138 of
the Act.”
In the matter in hand also, as discussed earlier, it is duly
established that the complainant sent demand notice on the correct
address of accused. As observed by Hon’ble Supreme Court of India in
the case of
C. C. Alavi Haji V/s. Palapetty Muhammeed and anr. (cited
supra), when the notice is sent by registered post by correctly
addressing the drawer of the cheque, the mandatory requirement of
issue of notice in terms of Clause (b) of proviso to Section 138 of the
Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
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23. As already discussed in earlier points, it becomes clear that
the subject cheque (Exh. 33) was dishonored on 25/10/2018 for the
reason of 'Funds Insufficient'. It is seen from the record that, the notice
(Exh. 36) was posted on 30/10/2018 to the accused and so, it is seen to
be sent within 30 days of dishonor of cheque. As discussed earlier,
notice is served to the accused on 03/11/2018. It is not defence of the
accused that he repaid the cheque amount within 15 days of notice and
summons of this proceeding. So, point Nos. 3 and 4 are answered in the
“affirmative”.
As to Point No.5 :
24. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are proved by
the complainant. As already discussed in earlier points, it becomes
clear from memo (Exh. 35) that the cheque (Exh. 33) was dishonored
on 25/10/2018. The notice (Exh. 36) was sent on 30/10/2018 and so,
it is seen to be issued within 30 days of dishonor of cheque (Exh. 33).
Therefore, the accused has to pay cheque amount within fifteen days
from 03/11/2018 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 19/11/2018. The complainant
has to file complaint within 30 days from the day of cause of action. The
complaint was filed on 05/12/2018. Therefore, the complaint is seen to
be filed within limitation. Hence, in view of entire evidence of the
complainant and failure of the accused to rebut presumptions given
under section 118 and 139 of the Act, it becomes clear that the accused
has committed an offence punishable u/s 138 of the Act. Consequently,
point No. 5 is answered in the “affirmative”.
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25. In view of my findings recorded herein above on point
No.5, I am taking a pause to hear the accused in person, his advocate
but accused is absent. Ld. Counsel Mr. Sabre Alam for accused is
present. He submitted that, the accused has made payment of Rs.
4,80,000/-. The said amount may be considered. On the contrary, the
complainant and his Counsel are present. Learned counsel for
complainant has prayed for maximum punishment. The matter is of the
year 2018. Hence, it won't be proper to wait further by putting the case
on hibernation.
26. Further it would not be illegal to pass the Judgment of
conviction in absence of accused as Sec. 353 (6) and Sec. 418 (2) of
Code of Criminal Procedure empowers the court to pronounce
Judgment even of conviction in absence of accused and to issue
conviction warrant if court find it to be just and proper. Hence, coupling
the provisions laid down under section 353(6) and 418(2) of Code of
Criminal Procedure with the guidelines to dispose of the old cases
expeditiously. Hence, I found it to be just and proper to pass the
Judgment of conviction in absence of accused where the accused is bent
upon to cause delay rather exercising his rights for defence. Thus, I do
not find any reason to keep the case pending when accused himself is
not willing to defend himself or even to appear before court.
Considering the age of case and the chances given to the accused I find
it to be justifiable and proper not to wait further and pronounce the
Judgment in absence of accused.
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27. Admittedly the accused has given sufficient opportunity to
make payment of the cheque from notice of the complainant till
conclusion of trial but accused failed to make it. Therefore, in order to
deter the human tendency to handover cheque without intending to
honour the same, the punishment is required to impose upon the
accused rather than giving benefit of Probation of Offenders Act.
28. The object of the Act is to enhance the credibility of the
negotiable instruments. The cheque involved in the case in hand is Rs.
17,17,298/-. In the present matter, on 25/10/2018, the disputed cheque
was presented to the drawee bank. If it would have had encashed
regularly, complainant could have received the amount in the month of
October 2018. That amount is admittedly lying with the accused. The
Hon’ble Supreme Court of India in the case of
R.Vijayan V. Baby and
anthers AIR 2012 SC 528, has discussed and expressed several aspects
to determine the amount of compensation and interest on the cheque
amount. Para Nos. 14 to 18 of the above judgment needs to be
reproduced here and those are as under:
“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
the power to levy fine upto twice the cheque amount
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
Direction to pay compensation by way of restitution in
regard to the loss on account of dishonour of the cheque
should be practical and realistic, which would mean not only
the payment of the cheque amount but interest thereon at a
reasonable rate. Uniformity and consistency in deciding
similar cases by different courts, not only increase the
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CNR No. : MHMM19-014424-2018
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice.”
29. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding
9 % per annum interest on the cheque amount by way of compensation
to the complainant. If interest on cheque amount (Rs. 17,17,298/-) at
the rate of 9 % p.a. is calculated for the period of 67 months i.e. from
the filing of present complaint (05/12/2018 to 15/07/2024), it comes
to Rs. 8,62,942/-. Cheque amount is Rs. 17,17,298/-. Thus, the amount
of Rs. 25,80,240/- is necessary to give to the complainant as an
compensation.
30. The object of the Act is to enhance the credibility of the
negotiable instruments. There is no criminal antecedent of accused
came on record. Thus, after considering said circumstances, amount of
cheque, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for Six months will be proper and justified.
31. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed:
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ORDER
1. Accused Mr. Raj Kumar Srivastava, Age : Adult is
convicted under Section 255 (2) of the Code of
Criminal Procedure, 1973 for an offence punishable
under Section 138 of the Negotiable Instrument Act,
1881 and sentenced to suffer simple Imprisonment
for Six months.
2. Accused is directed to pay compensation of Rs.
25,80,240/- (Rs. Twenty Five Lacs Eighty Thousand
Two Hundred Forty Only) to the complainant within
three months from today, in default to suffer Simple
Imprisonment for Six months.
3. Accused to surrender to his bail bond.
4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
6. Today i.e. on the date of judgment accused remained
absent, hence issue standing Non-bailable warrant against
the accused for his arrest through concerned police station
for execution of sentence in view of Section 418 (2) of
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CNR No. : MHMM19-014424-2018
Cr.P.C.
7. The copy of this Judgment shall be send to the convicted
accused, free of cost, in view of section 363(1) of the Code
of Criminal Procedure, 1973.
8. Dictated and pronounced in open court.
Sd/-
Mumbai (Y. P. Pujari )
Date:- 15/07/2024 Judicial Magistrate (First Class)
48th Court, Andheri, Mumbai.
Dictated On : 15/07/2024
Typed On : 15/07/2024
Signed On : 15/07/2024
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