Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No. 4623/SS/2018
Filed on : 19/11/2018
Registered on : 19/11/2018
Decided on : 23/06/2023
Duration : 04Y. 07M. 04D.
IN THE COURT OF METROPOLITAN MAGISTRATE
48TH COURT ANDHERI MUMBAI
(Presided over by K. G. Sawant)
Case No. 4623/SS/2018
CNR: MHMM190151142018
Exh. No.
Jet Airways Employees Coop. Credit Society
Limited, Mumbai.
Registered under Maharashtra Cooperative
Societies Act, 1960.
Having office at : 202, 2nd Floor,
Sanjay Appa Chamber, Chakala Guru
Govindsingh Marg, Andheri (E), Mumbai – 400093
through its Authorized representative
Mr. Mathew Colaco. …Complainant
Versus
Vikas Chalke.
R/o. Y. B. Patil Chawl
Besant Street, Khotwadi
Ganpati Mandir, Santacruz (W),
Mumbai – 400 054. ...Accused
Offence punishable U/s. 138 of
Negotiable Instruments Act
Advocate Mr. Amit Dubey/Vinay Kumar for the complainant
Advocate Mrs. Namrata Shenoy for accused.
-- 1 of 16 --
2 C. C. No. 4623/SS/2018
JUDGMENT	JUDGMENT
(Delivered on 23/06/2023)
Accused is mired in the trial, for having committed an
offence punishable U/s. 138 of the Negotiable Instruments Act, 1881.
(Hereinafter it is referred as 'N. I. Act' in short.)
Bonsai facts of the complaint are as under :
2] It is the case of complainant that, complainant is coop credit
society established to provide various benefits to the employees of jet
airways, who are the members of said society in the form of investment
and loan. This complaint is filed through authorized representative of
complainant society. Accused was working as a assistant manager of
said society since 01/04/2006 and he was responsible for the dayto
day working of the society. Accused had availed personal loan of Rs.
12,00,000/ from the society. Accused had also availed another loan of
Rs. 1,50,000/ from the complainant society. When new body of the
society was formed on 23/06/2017, they came to know that only
interest component was deducted from the salary of accused on his
loan, however principal loan amount was not deducted. Thereafter,
accused admitted said fact and assured to repay entire loan within few
months. Accordingly, in order to repay said loan along with interest on
it for further period, he issued cheque no. 249904 for an amount of Rs.
14,47,948/ dated 05/09/2018, drawn from his account maintained
with Mumbai District Central Co.Op. Bank Ltd., Juhu.
3] Complainant presented said cheque with its banker, however vide
memo dated 10/09/2018, cheque returned unpaid for reason “Funds
Insufficient”. Demand notice was sent on 05/10/2018. It was served
upon accused on 06/10/2018 and he replied to it on 17/10/2018 but
-- 2 of 16 --
3 C. C. No. 4623/SS/2018
did not pay cheque amount. Hence, complainant filed this complaint.
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.
5] In order to prove guilt of accused, complainant examined its
representative namely Mr. Mathew Colaca (C.W. 1) by filing his
affidavit in lieu of examinationinchief at Exh. 11, 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.
Statement of staff loan along with certificate
U/s. 65 (B) of Evidence Act.
Exh. 20
Original cheque Exh. 21
Cheque returned memo Exh. 22
Office copy of notice Exh. 23
Postal receipt Exh. 24
Track report ArticleA
Reply dated 17/10/2018 Exh. 25
6] After completion of complainant's evidence, statement of accused
vide Section 313 of Cr.P.C. was recorded at Exh. 27, wherein accused
have taken defence of falsely implication. Accused in support of his
defence examined himself (D.W. 1) at Exh. 32 and also relied upon
some documentary evidence.
7] Complainant has filed their written notes of argument at Exh. 47,
-- 3 of 16 --
4 C. C. No. 4623/SS/2018
while Ld. Advocate for accused has filed their written notes of argument
at Exh. 49.
8] Heard Ld. Advocate for both parties at length. Perused written
notes of argument filed on behalf of both parties. In view of accusation
and argument of both parties, following points arise for my
determination and I have recorded my findings thereon as follows:
Sr.
No.
Points Findings
1. Whether there is proper authorization in
favour of Mr. Mathew to file this complaint
on behalf of complainant society?
….
In the
Negative
2. Does complainant prove that disputed
cheques were issued by the accused, in
favour of complainant for discharging legal
enforceable liability?
…. In the
Negative
3. Does complainant prove that cheques were
returned unpaid for reason “Funds
Insufficient”?
…. In the
affirmative
4. Does complainant further prove that he had
issued statutory demand notice to the
accused within limitation demanding
cheques amount ?
…. In the
affirmative
5. 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
-- 4 of 16 --
5 C. C. No. 4623/SS/2018
6. Whether complaint is filed within period of
limitation? .. In the
affirmative
7. What order ?
.. Accused is
acquitted.
REASONS
Admitted/undisputed fact
9] Before going further it is necessary to mention
admitted/undisputed facts of this case.
Admittedly disputed cheque is drawn from the
account of accused and it bears his signature.
AS TO POINT NO. 1 AND 2
10] The accused is roped in the offence punishable u/s. 138 of
the N.I. Act. Upon perusal of relevant provision it is manifest that to
constitute offence punishable U/s. 138 of N.I. Act following ingredients
are to be fulfilled which are mandatory in nature.
 A person must have drawn a cheque on an account maintained by
him in a bank for the payment of certain amount of money to
another person from out of that account for the discharge in whole
or in part, of any debt or other liability.
 That the cheque has been presented to the bank within a period of
Three months from the date, on which it is drawn or within period
of its validity, whichever is earlier.
 That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is
insufficient to honour the cheque or that exceeds and amount
arranged to be paid from that account by an agreement made with
the bank.
-- 5 of 16 --
6 C. C. No. 4623/SS/2018
 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.
11] Before going further, it is necessary to mention here that, as per
Section 139 of N.I. Act, there is a presumption in favour of holder of
cheque. So also as per Section 118 of the Said Act, there is a
presumption that said cheque was issued for certain consideration. For
ready reference Section 118 and 139 of the said act are quoted below:
Sec. 118Presumptions as to negotiable instruments. Until the
contrary is proved, the following presumptions shall be made:
a) of consideration. that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred
for consideration;
b) as to date. that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance. that every accepted bill of
exchange was accepted within a responsible time after its date
and before its maturity;
-- 6 of 16 --
7 C. C. No. 4623/SS/2018
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.
12] Being cumulative, it is only when all above mentioned
ingredients are satisfied then the person who had drawn the cheque can
be deemed to have been committed an offence u/s .138 of the Act. For
the purpose of section 138, debt or other liability means a legally
enforceable debt or other liability. To understand the spirt of provisions
contemplated vide section 138 to 141 of Negotiable Instrument Act,
-- 7 of 16 --
8 C. C. No. 4623/SS/2018
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.
13] In order to prove its case, complainant examined its
representative Mr. Mathew Colaco (C.W.1) by filing his affidavit of
examinationinchief at Exh. 11, wherein he has reiterated his case from
-- 8 of 16 --
9 C. C. No. 4623/SS/2018
the complaint. His evidence shows that, accused had availed loan of Rs.
12,00,000/ from the complainant society and in order to repay said
loan, disputed cheque was issued by the accused. Ld. Advocate for
accused has conducted crossexamination of complainant at length.
From crossexamination of this witness, it appears that when the loan
was sanctioned, he was not part of the body of the society. His
evidence shows that, when he became chairman of the society, he came
to know that accused has availed loan and only interest portion was
deducted through EMI but no EMI was deducted for repayment of
principal loan amount. It was suggested to him that, as per their policy,
society takes cheques from the employees before disbursement of loan,
however same is denied by the complainant.
14] It has come on record that, accused has moved application for
loan on 20/03/2014 and loan was granted to him on 18/03/2014. It is
also matter of record that, accused had made complaint, against the
body member of society, with Deputy Registrar of Co.Op. Society stating
that, members of the society has obtained loan in the name of
employees and members have used it, for their personal use. It is
admitted by the complainant that, in that matter inquiry was conducted
as per Section 83 of Maharashtra Co.Op. Societies Act. However, it is
denied by the complainant that, in that inquiry, Deputy Registrar held
that, officer bearers of the society had obtained the loan for their
personal use in the name of employees. Complainant has admitted
that, no documentary evidence has produced on record by the
complainant to show that, loan amount was disbursed and deposited in
the account of accused. He doesn't know that contents of cheque are
not in the handwriting of accused. Thus, accused has a taken a defence
-- 9 of 16 --
10 C. C. No. 4623/SS/2018
that no loan was disbursed to him and society has misused the blank
signed cheque obtained from him before disbursement of loan.
15] In order to prove his defence, accused has entered into witness
box and got examined himself at Exh. 32. In his evidence, he stated
that, no loan was taken by him from the society and hence he is not
liable to pay cheque amount to the complainant society. He further
stated that, disputed cheque was given by him along with information
of employees maintained by the society. His evidence further shows
that, loan applications filed on record by the complainant bears his
signature and said application for loan was moved by him, but no loan
was actually given to him. His evidence further shows that, society has
not issued any loan sanctioned letter in his favour. He further stated
that, from 05/11/2014 society had deducted loan EMI from his salary
without his knowledge. His evidence further shows that, when it came
to his knowledge that, society has deducted loan EMI from his salary,
first of all, he met to office bearers, thereafter went to police and finally
filed complaint with Registrar of Co.Op. Society. He has produced on
record photocopy of inquiry report. Order dated 04/10/2018 passed by
the Deputy Registrar, letter issued by Deputy Registrar to the
complainant society on 30/12/2017 along with order dated
30/12/2017. He has also produced on record inquiry report submitted
by the Deputy Registrar U/s. 83 and 88 of Maharashtra Co.Op. Societies
Act.
16] Ld. Advocate for complainant conducted crossexamination of
accused at length. In crossexamination he admitted that, there is no
evidence to show that, disputed cheque was issued by him in favour of
-- 10 of 16 --
11 C. C. No. 4623/SS/2018
society along with information of employees maintained by the society.
17] It was also suggested to witness that documents filed at Exh. 38
and 39 are in respect of irregularities committed by earlier members.
Said suggestion given on the part of complainant clearly shows that,
complainant has also not disputed the fact that, earlier body of
complainant society has committed some irregularities. It was
suggested to him that in inquiry report it has come on record that, loan
of amount of Rs. 12,00,000/ was obtained by the accused and it was
given to other three employees namely Tansing Lamba, Vivek
Chincholikar and Pramod Kokate. It was specifically suggested that an
amount of Rs. 1,00,000/ was given to Tansing, Rs. 4,50,000/ to Vivek
Chincholikar and Rs. 50,000/ to Pramod Kokate in his personal
capacity. However, said suggestion has been denied by the witness. He
also denied that he had availed personal loan of Rs. 12,00,000/ from
the complainant society.
18] Accused has admitted his signature on loan application,
Promissory note and vouchers filed on record at Exh. 43 to 45. On
document at Exh. 45 i.e. debit receipt dated 31/03/2014, it is
specifically mentioned that, an amount of Rs. 12,00,000/ paid to
accused by cheque. However, cheque number has not mentioned there.
Document at Exh. 43 is loan application for long term loan along with
loan agreement and document at Exh. 44 is promissory note signed by
the accused for an amount of Rs. 12,00,000/. As discussed earlier,
accused has not denied signature on this document. However, he has
just denied receipt of loan of Rs. 12,00,000/. According to him, loan
amount was not deposited in his account i.e. same was not disbursed to
-- 11 of 16 --
12 C. C. No. 4623/SS/2018
him but office bearers of the society himself had obtained the loan in his
name and used it for their own benefit.
19] It is also argument of Ld. Advocate for accused that, the
person who filed this complaint, had no authority to file this complaint
on behalf of society since at the relevant time concerned body was
disqualified. Thus, basically accused has raised two defence only that he
did not receive actual loan amount and there was no proper
authorization in favour of Mr. Mathew to file this complaint. First of
all, I would prefer to discuss about authorization of Mr. Mathew to file
this complaint. Ld. Advocate for accused has produced on record
certified copy of order dated 4/10/2018 passed by subregistrar
cooperative society,east department Mumbai. For ready reference
operative order dated 4/10/2018 is quoted below:
“ egkjk”Vª lgdkjh laLFkk vf/kfu;e 1960 ps dye 77 ¼vs½ ¼c&1½ vUo;s
izkIr vf/kdkj ijRos ih- ch- lkriqrs] mifuca/kd] lgdkjh laLFkk] ds iwoZ foHkkx]
eqacbZ tsV ,vjost ,EiykWbZt dks&vkWi dzsfMV lks- fy-] 202] lat; vIik
psaclZ] 2 jk etyk] xq: xksfoanflax jksM] pdkyk] va/ksjh&iwoZ] eqacbZ &400
013 ;k laLFksP;k O;oLFkkid lferh lnL; ;kauk mijksDr dkj.kkLro cj[kkLr
d:u laLFkspk nSuafnu dkjHkkj ikg.kslkBh Jh- Mh-ch- xksLokeh] lgk;d fuca/kd
¼nqX/k½] egkjk”V jkT;] eqacbZ ;kaph izkf/kd`r vf/kdkjh Eg.kwu 6 efgU;kdjhrk
fu;qDrh dj.;kr ;sr vkgs-”
From perusal of said order it becomes clear that, management of the
society was disqualified for period of 6 months and one Mr. B.D.
Goswami, Assistance Subregistrar was appointed as a
officer/administrative to lookafter management of the society for the
period of 6 months.
20] From perusal of complaint it appears that, complaint was filed in
-- 12 of 16 --
13 C. C. No. 4623/SS/2018
next month only i.e. on 19/11/2018, wherein it has been specifically
mentioned that, through its authorized representative Mr. Mathew
Colaco. In list of document at serial no. 1, there is reference of board
resolution, however it appears that said resolution was not exhibited
since complainant has failed to prove that such resolution was passed
by the society, by giving authorization to Mr. Mathew to file this
complaint. There is nothing to show that, administrator appointed by
ordered dated 04/10/2018 filed this complaint or he authorized Mr.
Mathew to file this complaint on behalf of society. In such
circumstances, it appears that, Mr. Mathew had no right to file this
complaint on behalf of society.
21] Now next question arise that whether loan was disbursed to the
accused or not. As discussed earlier accused had admitted his signature
on loan agreement, loan application, promissory note and receipt at
Exh. 45, wherein it is specifically mentioned that, amount paid to Vikas
Chalke by cheque and in next column an amount of Rs. 12,00,000/ has
been mentioned. Said receipt bears signature of accused and manager.
It is true that, complainant has failed to show that actually amount was
disbursed to the accused but reply given by accused to demand notice
shows that, there used to be deduction from his salary against the EMI
of loan amount. That means certainly some amount was given to the
accused by way of loan by the complainant society.
22] It is contention of accused that out of said loan amount, Rs.
1,00,000/ was used by Tansing, Rs. 4,50,000/ by previous Secretary
Vivekanand Chincholikar and Rs. 50000/ by Pramod Kokate.
According to him, registrar of cooperative society has also given
-- 13 of 16 --
14 C. C. No. 4623/SS/2018
findings to that effect. Accused has produced on record inquiry report
filed u/s. 88 of Maharashtra CoOperative Societies Act, wherein on
page 101 finding has been given stating that, Mr. Chincholikar has
obtained Rs. 4,50,000/ and Mr . Lama Rs. 1,00,000/ and Mr. Kokate
has obtained Rs. 50000/ from the accused. It is further mentioned
that, Mr. Lama has only admitted about acceptance of Rs. 1,00,000/.
Therefore, there is no finding regarding remaining amount. However,
in report it is also clearly mentioned that except an amount of Rs.
5,00,000/, remaining amount is to be recovered from the accused
along with interest. Thus, said inquiry report has fixed liability of
accused for recovery of loan amount excluding an amount of Rs.
5,00,000/. So, it appears that, entire loan amount was not outstanding
against the accused.
23] Complainant has failed to prove that an amount of Rs.
14,47,948/ was outstanding against the accused. Complainant has
also not produced ledger account or account statement maintained by
the society to show that cheque amount was outstanding against the
accused. In fact, complainant has failed to prove that loan amount of
Rs. 12,00,000/ was disbursed and same was credited in the account of
accused. Therefore, it cannot be said that disputed cheque was issued
by the accused for discharging legally enforceable liability.
Complainant has also failed to prove that Mr. Mathew had proper
authorization to file this complaint on behalf of complainant society. In
result point nos. 1 and 2 are answered in the negative.
AS TO POINT NO. 3 TO 6
24] In order to prove that cheque was returned unpaid, complainant
has relied upon his own oral evidence in addition to documentary
-- 14 of 16 --
15 C. C. No. 4623/SS/2018
evidence i.e. cheque return memo filed at Exh. 22. Said memo bears
seal of the bank and signature of bank officer. Therefore, as per Section
146 of N.I. Act, it is to be presumed that said cheque was returned
unpaid for the reason mentioned in memo. As per cheque returned
memos produced on record it becomes clear that disputed cheque was
returned unpaid for the reason “Funds Insufficient”.
25] Cheque was dishonoured vide memo dated 10/09/2018 and
demand notice was sent on 05/10/2018 i.e. within one month from the
date of dishonoured of cheque. As per track report notice was delivered
on 06/10/2018. Admittedly, after service of notice accused has not
paid cheque amount to the complainant. It is a matter of record that,
said complaint is filed within a period of limitation. In result point Nos.
3 to 6 are answered in the affirmative.
AS TO POINT NO.7
26] Taking into consideration answer of points Nos. 1 and 2, it
becomes clear that, the complainant has failed to prove that there was
proper authorization in favour of Mr. Mathew to file this complaint on
behalf of complainant society. Complainant has also failed to prove
that, disputed cheque was issued by the accused in his favour for
discharging legal enforceable liability. On that count, accused is
entitled for acquittal. In result, I proceed to pass following order :
ORDER
1] Accused Mr. Vikas Chalke is hereby acquitted vide Section
255(1) of Criminal Procedure code for an offence punishable
under Section 138 of the Negotiable Instruments Act.
-- 15 of 16 --
16 C. C. No. 4623/SS/2018
2] Bail bond of accused stands canceled.
3] Accused shall execute P.R. Bond of Rs. 15,000/, to appear
before the Higher Court as and when such court issues notice in
respect of any appeal or petition filed against this judgment, vide
section 437 (A) of the Code of Criminal Procedure. Said bail
bonds shall be in force for Six Months.
(Judgment is dictated and pronounced in open court.)
Mumbai (K. G. Sawant)
Dt. 23/06/2023 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 23/06/2023
Typed On : 23/06/2023
Signed On : 23/06/2023
-- 16 of 16 --