Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 4986/SS/2018
Filed on : 14/12/2018
Registered on : 14/12/2018
Decided on : 15/01/2024
Duration : 05Y. 01M. 01D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 4986/SS/2018
CNR: MHMM190147972018
Exh. No.
Mr. Vikas V. Khanolkar.
Aged : 54 years, Occu : Advocate
Residing at Flat No. 1, Mahesh Bhavan
CoOp. Hsg. Pandurang Wadi Road No. 2,
Goregaon (E), Mumbai – 400 063. …Complainant
Versus
Mr. Yuvraj Mangha Ishi.
Age : Adult, Occu : Services
R/o. Samarat Ashok Nagar,
Near to Nana Pawar House,
Ulhas Nagar No. 3, Ulhas Nagar,
District Thane – 421 003. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Complainant in person.
Advocate M. R. Shaikh/P.A. Shukla for accused.
JUDGMENT	JUDGMENT
(Delivered on 15/01/2024)
Accused is mired in the trial, for having committed an
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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 advocate by profession. Accused had
engaged him in summary suit no. 703/2017, which was filed against
the accused in the City Civil Court at Mumbai. In order to pay
professional fees of complainant, cheque for an amount of Rs. 20,000/
drawn on Axis Bank Ltd. bearing cheque no. 946104 dated 20/07/2018
was issued by the accused in favour of complainant.
3] Complainant presented said cheque for clearance with his banker
namely Janata Sahakari Bank Ltd., VileParle, however cheque returned
unpaid for a reason “ Funds Insufficient” vide memo dated 20/08/2018.
Thereafter, again as per instructions of accused, said cheque was
presented for clearance by the complainant, however this time also it
returned unpaid vide memo dated 15/10/2018 for a reason “ Payment
stopped by drawer”. After dishonoure of cheque, complainant issued
statutory demand notice to accused on 13/11/2018 by RPAD, calling
upon accused to pay the cheque amount, within stipulated time. Notice
was returned back on 26/11/2018 with remark Door locked on
15/11/2018. As notice was sent on correct address, complainant taken
it as a duly served upon accused. Amount claimed in notice, was not
paid by the accused, hence 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 14/12/2018.
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.
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5] In order to prove guilt of accused, complainant examined himself
(C.W. 1) by filing his affidavit in lieu of examinationinchief at Exh. 13,
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.
Original Cheque Exh. 24
Cheque returned memos ArticleA and B
Office copy of notice Exh. 25
Courier receipt Exh. 26 and 27
Returned envelope from the courier Exh. 28
6] After completion of complainant's evidence, statement of accused
U/s. 313 of Cr.P.C. was recorded at Exh. 41, wherein accused has
admitted his liability but further stated that, complainant never
appeared in his matter as an advocate and hence he stopped payment of
the cheque.
7] Heard Ld. Advocate for both parties at length and perused
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
cheque was issued by the accused, in favour
of complainant for discharging legal
…. In the
Affirmative
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enforceable liability?
2. Does complainant prove that cheque was
returned unpaid for reason “Payment
stopped by drawer”?
…. 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
convicted.
REASONS
Admitted/undisputed fact
8] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque has been drawn from the
account of accused and it bears his signature.
AS TO POINT NO. 1
9] The accused is roped in the offence punishable u/s. 138 of
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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.
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
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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
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.
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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
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
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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 himself
(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 was engaged as an advocate in the summary suit no.
703/2017 and in order to pay his professional fees, he issued disputed
cheque for an amount of Rs. 20,000/. It is necessary to note here that,
accused did not conduct the crossexamination of complainant and
hence, evidence of complainant has gone unchallenged. In his
statement recorded u/s. 313 of Cr.P.C., accused has admitted issuance
of cheque for an amount of Rs. 20,000/ and dishonoure of said cheque
but according to him complainant never appeared for him in the court
and hence he stopped payment of cheque.
13] Heard complainant and gone through written notes of argument
filed on behalf of complainant. Inspite of opportunity given, accused
neither conducted crossexamination, nor argued in this matter.
Accused has not denied issuance of cheque and his signature on it.
Therefore, evidence of complainant has gone challenged. Thus, it
shows that, accused was liable to pay cheque amount and hence to
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discharge his liability, disputed cheque was issued by the accused. In
result, Point no. 1 has answered in the affirmative.
AS TO POINT NO. 2 TO 5
14] In order to prove that, cheque was returned unpaid for
reason “Payment stopped by drawer”. Complainant examined bank
witness Mr. Shailesh Ghosalkar (C.W.2) at Exh. 30. It has come in the
evidence of bank that, cheque was returned unpaid for a reason
“Payment stopped by drawer”. He has produced on record account
statement of the complainant and memo, which shows that, cheque has
returned unpaid on 15/10/2018 for a reason “Payment stopped by
drawer”.
15] It is a matter of record that, demand notice was sent on
13/11/2018 through Vichare Courier and it has returned back with
endorsement “Closed”. It is not the case of accused that, demand notice
was not sent on his correct address. Accused has not denied his address
mentioned on the envelope of demand notice. Therefore, in view of law
laid down by Hon'ble Supreme Court in the case of C.C. Alavi Haji V/s.
Palapetty Muhammed R/w. Section 27 of General Clauses Act and
Section 114 of Indian Evidence Act, it is to be presumed that, demand
notice was duly served upon accused. Admittedly, accused has not
paid cheque amount to the complainant within 15 days from the date of
service of summons. Therefore, defence of nonservice of notice is not
available to the accused. It is a matter of record t hat, complainant has
filed this complaint within limitation. In result, point nos. 2 to 5 are
answered in the affirmative.
AS TO POINT NO.6
16] Taking into consideration answer of points Nos. 1 to 5, it
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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
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. Sd/
(K. G. Sawant)
Date : 15/01/2024 Metropolitan Magistrate,
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
17] Accused is absent. Ld. Advocate P.A. Shukla for accused is
present. I explained to the Ld. Advocate for accused that, accused 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
both parties to clarify their stand on the nature and quantum of the
sentence, if any.
18] Upon asking on the point of sentence, Ld. Advocate for
accused has submitted that, accused is ready to pay the cheque amount
but due to financial problem, he requires some time. Considering age
of accused, he prayed to take lenient view.
19] On the other hand, complainant submitted that, accused
was a Government Servant. Accused has committed mischief. Hence, he
prayed to impose sentence of imprisonment as well as prayed for
compensation.
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20] In this case, cheque amount is Rs. 20,000/ only. Accused has
not conducted crossexamination of complainant. Initially, no any
advocate was appearing for accused. It shows that, his financial
conditions was not sound. It appears that, accused is old aged.
Considering amount involved in this matter, nature of offence, purpose
of legislature behind enactment of Section 138 of N.I.Act, I am of the
view that, this is not a fit case to impose sentence of imprisonment but
purpose will be served by granting compensation only. In result, I
proceed to pass following order:
ORDER
i. The accused Mr. Yuvraj Mangha Ishi 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 sentenced to pay fine of Rs. 25000/ (Rs. Twenty Five
Thousand only). In default of payment of fine, he shall suffer rigorous
imprisonment for period of Six Months.
iii. After recovery of fine amount of Rs. 25,000/, same shall be paid
to the complainant by way of compensation Vide Section 357(1) of the
Code of Criminal Procedure.
iv. The amount of fine 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).
v. Accused to surrender his bail bonds.
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vi. 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.
vii. 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.
viii. Dictated and pronounced in open court.
Sd/
Mumbai (K. G. Sawant)
Dt. 15/01/2024 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 15/01/2024
Typed On : 15/01/2024
Signed On : 15/01/2024
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