Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 /15 C. C. No. 5137/SS/2018
Filed on : 26/12/2018
Registered on : 26/12/2018
Decided on : 07/06/2022
Duration : 03Y. 05M. 12D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 5137/SS/2018
CNR: : MHMM190145112018
Exh. No. 46
Mr. Buddhadev Makham Das.
Age : about 31 years,
Occu : Service
Residing at : Flat No. A/301,
Bldg. No. 1, Yamuna CoOp. Hsg. Soc. Ltd.
Central Park, Tulinj, Nallasopara (E),
Dist.: Palghar – 401209. ...Complainant
V/s.
1] M/s. Shalini Construction
Builders & Developers,
Having office at : Sai Bazar,
Near Flyover,
near Tulinj Police Chowky,
Nallasopara (E), Tahsil : Vasai,
Dist: Palghar – 401209.
2] Mr. Sandeep Balkrishna Jadhav.
The Proprietor,
M/s. Shalini Constructions,
Age : 55 years,
Occu : Business, R/o. Flat No. 204,
BWing, Radha Gokul CHS Ltd. Radhanagar,
Nallasopara (E), Tahsil : Vasai,
Dist.: Palghar – 401209. ...Accused
-- 1 of 15 --
2 /15 C. C. No. 5137/SS/2018
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Shri. R. S. Singh for the complainant.
Advocate Shri. Milind More for the accused.
JUDGMENT	JUDGMENT
(Delivered on 07/06/2022)
Accused are 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.)
Case of the complainant in nutshell is as under :
2] It is the case of complainant that, he was in need of residential
premises. Accused no. 1 is the proprietorship concerned engaged in the
business of construction of buildings and accused no. 2 is the proprietor
of accused no. 1. It is further case of complainant that, he along with
his brothers namely Shankar and Raju approached to the accused with
intention to purchase residential premises/flat at the project of accused
known as Saibazar project situated at Nalasopara, Dist: Palghar. It is
further case of complainant that, after negotiations between the parties,
he purchased flat no. D 102, admeasuring 515 sq. ft. at the cost of Rs.
3300/ per sq. ft. Thus, total consideration for flat decided between the
parties was Rs. 16,86,300/ .
3] It is further case of complainant that, out of agreed amount, he
paid an amount of Rs. 5,10,000/ to the accused and remaining amount
was to be arranged by way of loan from the bank. Accused was
supposed to provide all the documents i.e. the sanctioned plan, CIDCO
-- 2 of 15 --
3 /15 C. C. No. 5137/SS/2018
approval certificate etc. for arranging the loan. Accused had issued
receipts of said payments in the name of complainant. Particulars of
payments are given by complainant in para no. 7 of his complaint. It is
further case of complainant that, lateron he came to know that said
project of accused was not approved by CIDCO and there was no proper
permission or license issued by government authorities. Therefore, said
transaction was canceled by mutual consent between the parties and
accused agreed to repay amount of Rs. 5,10,000/ to the complainant.
Accordingly, accused repaid Rs. 50,000/ on the same day I.e
14/07/2016 and promised to repay the remaining amount.
4] It is further case of complainant that, after repeated follow up,
accused promised to repay remaining amount along with interest and
accordingly he paid Rs. 50000/ on 03/10/2017 and again Rs. 50000/
on 04/10/2017. Thereafter, he issued three cheques for an amount of
Rs. 3,50,000/ i.e. two cheques for Rs. 1,50,000/ each and one cheque
bearing no. 000042 dated 25/08/2018 for an amount of Rs. 50000/.
as per instruction of accused, complainant presented all these three
cheques for clearance with his banker. However, all three cheques were
returned unpaid. Disputed cheque for an amount of Rs. 50000/ was
returned unpaid for reason “Account closed” vide memo dated
17/11/2018. After dishonor of first two cheques, complainant did not
take any action against the accused.
5] So far as, disputed cheque for an amount of Rs. 50,000/ is
concerned, he issued legal demand notice to the accused on
22/11/2018, calling upon accused to pay cheque amount within 15
days from the date of service of notice on them. The said notice was
not received by the accused and therefore it was returned on
-- 3 of 15 --
4 /15 C. C. No. 5137/SS/2018
12/12/2018. Notice was sent on correct address and therefore it is to
be presumed that notice was duly served upon accused. Inspite of
service of notice, accused did not pay cheque amount to complainant.
As due amount is not arranged, complainant left with no other option,
than to knock the doors of the court seeking justice and ipso Jure case
came before this court.
6] The cognizance of offence u/s. 138 of Negotiable Instrument Act
was taken and accused was summoned. Post issuance of process,
presence of accused were secured before the court and he was
submitted to bail. Substance of accusation was read over to accused, to
which he pleaded not guilty and opt for trial. Considering nature of
offence, this case is a tried as a summons trial case.
7] In order to prove guilt of accused, complainant examined himself
by filing his affidavit in lieu of examinationinchief at Exh. 20 as per
section 145 of the Negotiable Instrument Act. Besides oral evidence,
complainant has relied upon following documentary evidence that
includes:
Sr. No. Description of documents Exh. No.
1. Certified copy of summary suit along
with roznama
Exh. 24
2. Certified copy of list of documents
filed in summary suit
Exh. 25
3. Certified copy of 7 receipts Exh. 26 to 32
4. Handwritten note of accused Exh. 33
5. Certified copy of disputed cheque Exh. 34
6. Certified copy of cheque returned Exh. 35
-- 4 of 15 --
5 /15 C. C. No. 5137/SS/2018
memo
7. Certified copy of demand notice Exh. 36
8. Certified copy of postal receipts Exh. 37
9. Certified copy of returned envelope
from the post
Exh. 38
8] After closer of complainant's evidence, statement of accused vide
section 313 of Cr.P.C. was recorded vide Exh. 42 wherein accused has
admitted claim of the complainant and stated that he is ready to pay
amount of complainant within 15 days.
9] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of complainant at Exh. 43 and written
notes of argument filed on behalf of accused at Exh. 45.
10] 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
cheque was issued by the accused, in favour
of complainant for discharging legal
enforceable liability?
…. In the
affirmative
2. Does complainant prove that cheque was
returned unpaid for reason “Account
closed”?
….
In the
affirmative
-- 5 of 15 --
6 /15 C. C. No. 5137/SS/2018
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 are
convicted
REASONS
Admitted/undisputed fact
11] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the
account of accused no. 1 and it bears signature of
accused no. 2.
AS TO POINT NO. 1
12] The accused are 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
-- 6 of 15 --
7 /15 C. C. No. 5137/SS/2018
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.
13] 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
-- 7 of 15 --
8 /15 C. C. No. 5137/SS/2018
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
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
-- 8 of 15 --
9 /15 C. C. No. 5137/SS/2018
138, for the discharge, in whole or in part, of any debt or other
liability.
14] 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
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
-- 9 of 15 --
10 /15 C. C. No. 5137/SS/2018
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.
15] In order to prove his case, complainant has examined himself by
filing his affidavit of examinationinchief at Exh 20, wherein he has
reiterated his case from the complaint. His evidence shows that he had
given an amount of Rs. 5,10,000/ to the accused as an earnest amount
against the purchase of flat in the project of accused. His evidence
further shows that, total consideration amount for the said flat was Rs.
16,86,300/. According to him, there was no proper authorization on
behalf of CIDCO as well as other government authority for this project.
In short, said project was not legal and therefore my mutual consent
said transaction was canceled. It is further case of complainant that,
accused has repaid some amount to him and as a part of repayment of
an amount of Rs. 5,10,000/, disputed cheque for an amount of Rs.
50,000/ was issued by the accused in his favour.
16] Besides that complainant has produced on record some
documents that includes copy of plaint from summary suit no. 5/19,
which is filed by complainant against the accused. He has produced on
record receipts issued by accused and undertaking dated 09/10/2016,
by which accused has repaid Rs. 50,000/ to the complainant and
promised to repay remaining amount of Rs. 4,60,000/ in installment
till the end of January.
-- 10 of 15 --
11 /15 C. C. No. 5137/SS/2018
17] Ld. Advocate for accused took crossexamination of complainant
at considerable length. However, nothing has come on record through
crossexamination in order to disbelieve oral and documentary evidence
adduced by the complainant. In crossexamination, complainant has
admitted that he has received Rs. 30,000/ from the accused against the
interest. He further admitted that, accused has repaid an amount of Rs.
1,50,000/ out of Rs. 5,10,000/.
18] Thus, from perusal of entire crossexamination, it appears that
accused has not denied liability of payment of cheque amount. In fact,
during crossexamination also suggestion was given to witness whether
he is ready to accept the cheque amount, to that witness had answered
in affirmative. Thus, oral and documentary evidence available on
record clearly shows that disputed cheque was issued by the accused in
favour of complainant for repayment of amount of the complainant i.e.
for discharging legal enforceable liability. Accused has failed to rebut
the presumption u/s. 139 of N.I. Act. In result, point no. 1 is answered
in the affirmative.
AS TO POINT NO. 2 TO 5
19] In order to prove that cheque was returned unpaid for
reason “Account closed”, complainant has relied upon his own oral
evidence in addition to documentary evidence i.e. cheque return memo
filed at Exh. 35. Said memo clearly shows that cheque was returned
unpaid for a reason “Account closed”. Said memo bears seal of the
bank, and signature of bank officer. As per section 146 of N.I. Act,
court shall in respect of every proceeding under this chapter, on
production of bank slip or memo having thereon official mark denoting
that cheque has been dishonored, presume the fact of dishonor of such
-- 11 of 15 --
12 /15 C. C. No. 5137/SS/2018
cheque, unless and until such fact is disproved. In the case at hand
memo bear seal of the bank and signature of concerned officer. Besides
that accused has not denied that cheque was dishonored for reason
“Account Closed”. Therefore, it remains proved that cheque was
dishonored for a reason “Account closed”.
20] In order to show that statutory demand notice was issued
to accused within statutory period, complainant has filed on record
office copy of notice at Exh. 36. Postal receipts of said notice is marked
as Exh. 37 and returned envelope is marked as Exh. 38. It is not denied
by the accused that notice was sent on his correct address. Therefore,
as per section 27 of General Clauses Act it is to be presumed that notice
sent on correct address is duly served upon accused.
21] It appears that cheque was dishonored vide memo dated
17/11/2018, notice was sent on 21/11/2018 and complaint is filed on
26/12/2018. Demand notice was returned back to the complainant on
12/12/2018. Returned envelope shows that intimation was given to
the accused on 29/11/2018. So it is to be presumed that notice was
served upon accused on 29/11/2018. Thus, notice was sent within
limitation, so also complaint is filed within limitation. In result point no.
2 to 5 are answered in the affirmative.
AS TO POINT NO.6
22 Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that the complainant has duly proved his claim with
cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
-- 12 of 15 --
13 /15 C. C. No. 5137/SS/2018
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 them 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.
(K. G. Sawant)
Date : 07/06/2022 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
23] 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.
24] Upon asking on the point of sentence, the accused and his
advocate has submitted that he was ready to pay cheque amount to the
complainant but complainant did not accept it. He further stated that
today also he is ready to transfer cheque amount of Rs. 50000/
through RTGS. Ld. Advocate for accused Shri. Milind More has
submitted that complainant has filed summary suit against the accused
and same is decreed and by which accused is directed to pay an amount
of Rs. 3,50,000/ along with 18% interest per annum till realization of
payment. He further submitted that considering readiness of accused to
pay the amount minimum punishment should be imposed and hence
prayed for leniency.
25] On the other hand Ld. Advocate for complainant R. S. Singh has
-- 13 of 15 --
14 /15 C. C. No. 5137/SS/2018
submitted that readiness to pay amount is no ground to show the
leniency. If accused wanted to pay the amount, he should have offered
it within 15 days from the date of service of summons on it. Even after
passing of decree, accused has not paid the amount. He further stated
that cheque was issued by accused knowing that account was closed
prior to three years of issuance of cheque. So also he represented to the
complainant that, he got all necessary permissions for construction of
building and thereby made the complainant to book the flat in his
project and as such he has cheated to the complainant. He further
stated that he is not interested in compensation amount since civil court
has already taken care of amount of the complainant and therefore
prayed for maximum sentence of imprisonment against the accused.
26] Having heard both parties at considerable length and Considering
facts of this case, it clearly appears that accused has cheated to the
complainant by issuing the cheques from the account which was closed
long back from the date of issuance of cheque. At the same time, it is
also matter of record that, during the pendency of matter accused had
tried to settle the matter. Considering all these things, purpose of
legislature behind the enactment of section 138 of N.I.Act following
order will meet the ends of justice. In result, I proceed to pass
following order:
ORDER
i. The accused No. 2 Sandeep Balkrishna Jadhav Proprietor of
accused no. 1 M/s. Shalini Construction 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.
-- 14 of 15 --
15 /15 C. C. No. 5137/SS/2018
ii. Accused No. 2 is sentenced to suffer simple imprisonment for
period of One year and he shall pay compensation of Rs. 50,000/ (Rs.
Fifty Thousand Only) 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
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.
Mumbai (K. G. Sawant)
Dt. 07/06/2022 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 07/06/2022
Typed On : 07/06/2022
Signed On : 07/06/2022
-- 15 of 15 --