Presented on : 02.07.
2021
Registered on: 16.07.2021
Decided on : 18.01.2023
Duration : Y. M. D.
01 06 16
(J.O. Code01775)
IN THE COURT OF ADDL. CHIEF JUDICIAL MAGISTRATE
(COURT NO.10), AHMEDNAGAR
(Presided over by: Smt. Maya A. Deshmukh)
Sum Cri. Case No.3012/2021 EXH.49.
(CNR NO.MHAH030044432021)
Mangaldip Multistate Urban
Cooperative Credit Society Ltd.,
Ahmednagar
Through its Authorized Person
Bhausaheb Rabhaji Waghule,
Age: 58 years, Occ: Service,
Head Office– Sai Enclave,
Old Pimpalgaon Road, Ekvira Chauk,
Pipeline Road, Tal. & Dist. Ahmednagar.
… Complainant
Versus
Dolly Vinod Anand
Age: 34 years, Occ: Business,
R/o: House No.11, Sindhi Colony,
Tarakpur, Tal. & Dist. Ahmednagar.
… Accused
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Shri. S.S. Tone : Learned Advocate for the complainant.
Shri. K.G. Gawali : Learned Advocate for the accused.
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.2. S.C.C. No.3012/2021
(Judgment Exh.49.)
JUDGMENT
(Delivered on 18th day of January, 2023)
The complaint against the accused is filed for the offence
punishable under Section 138 of Negotiable Instruments Act, 1881.
2] The brief facts of the complaint are as under :
The complainant Society is registered under MultiState
Cooperative Societies Act and Bhausaheb Rabhaji Waghule is
authorised to act on behalf of society and represent the society in the
present case. The complainant society provides financial assistance/
support to its members for various purposes. The accused was in need
of financial assistance for business, so she approached to the
complainant society and applied for loan. On 07102019, the
complainant society has granted loan of Rs.70,000/ to the accused, on
the term of repayment in installments and execution of document to
that effect. Accordingly, the accused also executed necessary loan
documents in favour of the complainant society. Thereafter, the loan
amount was disbursed to the accused. However, the accused failed to
repay the loan amount within stipulated time. After repeated request,
the accused issued the disputed cheque No.000014 of Rs.78,500/, on
11/05/2021 of Andhra Bank, BranchTarakpur, Tal. &
Dist.Ahmednagar in favour of the complainant society to satisfy the
due amount of loan. The complainant society presented the said
cheque for encashment. But said cheque dishonoured due to reason of
"Funds Insufficient." Thereafter, on 31/05/2021, the complainant
issued a legal notice to the accused through his counsel, calling upon
him to pay the amount mentioned in the disputed cheque within
stipulated period. In spite of intimation of notice, the accused failed to
repay the amount. Hence, the complainant filed the present complaint.
.3. S.C.C. No.3012/2021
(Judgment Exh.49.)
3] After perusing the record, the court issued process against
the accused for the offence punishable under section 138 of N.I.Act.
4] The accused appeared through his counsel and the court
has recorded the plea of the accused. The accused not pleaded guilty
of the offence and claimed to be tried.
5] The complainant in order to prove his case examined the
authorised officer of the complainant society namely Bhausaheb
Rabhaji Waghule as P.W.No.1 vide Exh.29 and relied upon
Authorization in favour of Bhausaheb Waghule (Exh.30) Cheque
(Exh.31), Bank memo (Exh.32), office copy of notice (Exh.33), Postal
Envelope (Exh.34), Loan Application (Exh.35), Loan approval
letter/Karjrokha, Affidavit (Exh.36), Promissory note (Exh.37),
Account extract and Certificate under section 65 of evidence act
(Exh.38).
6] As the incriminating evidence appeared against the
accused, the statement of the accused recorded under Section 313 of
Cr.P.Code, 1973. The accused took the defence that the cheque was
given as a security for the loan which was misused by the complainant
and no such dues was pending against him for recovery.
7] Heard both the sides at length.
8] Considering the submissions given by both the sides and
the material placed on record, the following points arise for
determination to which findings are recorded along with reasons as
.4. S.C.C. No.3012/2021
(Judgment Exh.49.)
under :
Sr. No. Points Findings
1. Whether the complainant proves that
the accused issued the cheque bearing
No.000014, dated 11/05/2021
amounting Rs.78,500/ for the
repayment of due amount of the loan
which is legally enforceable debt? ... Yes.
2. Whether the complainant proves that
the cheque returned with the reason
of “Funds Insufficient”, when it is
presented for encashment? … Yes.
3. Whether the complainant proves that
he issued legal notice demanding the
amount of dishonoured cheque from
the accused? … Yes.
4. Whether the complainant proves that
the accused received the notice, but
failed to make payment of
dishonoured cheque within stipulated
time? …Yes.
5. Whether the accused committed an
offence punishable under Section 138
of N.I. Act? …Yes.
6. What order? As per final
order.
REASONS
As to Point No.1 :
9] Under Section 118 and 139 of N.I. Act rebuttable
presumptions are available in favour of the complainant to the effect
that once the issuance of cheque, its dishonour is proved, court has to
.5. S.C.C. No.3012/2021
(Judgment Exh.49.)
presume that the same has been drawn for consideration and it is
issued for legally enforceable debt or liability. The onus of proof to
rebut these presumptions lies on the accused. Therefore, if the
accused is able to raise a probable defence which creates doubt about
the existence of a legally enforceable debt of liability, the prosecution
can fail.
10] The learned counsel for the accused further raised the plea
that the account extract on record is bogus and nowhere discloses the
actual due amount on the date of the alleged cheque which is
sufficient to draw inference that the complainant misused the cheque
of the accused kept as a security with them while filing loan
application. He further submitted that the complainant did not file
any documentary proof about the membership of the accused and loan
details to show the accused is liable to pay anything.
11] The representative of the complainant Bhausaheb (PW1)
in his evidence produced the loan application of he accused, approval
of loan, promissory note and agreement executed by the accused, co
borrower and surety in their favour along with the loan account
extract of the accused and admitted the correctness of its contents and
acknowledged signature upon those documents.
The learned counsel for the complainant by relying on
those documents submitted that they successfully shown the approval
of loan on the application of the accused and disbursement of loan as
well as what paid by the accused towards the loan and what is due
towards the loan.
12] In his crossexamination, representative of the
.6. S.C.C. No.3012/2021
(Judgment Exh.49.)
complainant (PW1) stated that in Bachat Gat, the loan amount is
sanctioned jointly but distributed to its members by bifurcation of loan
amount. He denied that the disputed cheque was taken by the
complainant as security while taking loan application from the
accused. He admitted that they did not collect the documents of
business of the accused. He denied that on 11/05/2021 the amount of
Rs.78,500/ was not due towards the accused.
13] On perusal of the loan documents i.e. loan application,
loan sanction it appears that it is in the name of the accused for the
loan of Rs.70,000/ to which two persons signed as a guarantee.
Promissory note and agreement discloses that Rs.70,000/ loan amount
was sanctioned and disbursed to the saving account of the accused and
the loan has to be repaid within 18 months along with interest at the
rate of 25% if any default is committed. The account extract discloses
Rs.70,000/ amount was shown as debit to the account of the accused
and some amount was deposited by the accused in the said loan.
From these documents, it appears that the accused applied
for loan and after disbursement of loan he paid some installments as
per agreement of loan, but later on committed default.
14] The account extract discloses that on every month end the
interest was posted to the account of the accused. The account extract
discloses that on 30/04/2021 an amount of Rs.78,556/ was due and in
the month end of May i.e. on 31/05/2021 the interest of Rs.1,676/ was
added in the account. The disputed cheque is dated 11/05/2021. It
means the disputed cheque was for the amount of due on 30/04/2021.
Therefore, merely the entry of 11/05/2021 does not shown in the
account extract is not sufficient to draw any inference that such
.7. S.C.C. No.3012/2021
(Judgment Exh.49.)
amount was not due against the accused. Therefore, I hold that the
amount shown in the disputed cheque accordingly is correct and not
vague as submitted by the learned counsel for the accused.
15] As discussed above, the complainant through loan
documents and account extract of the accused has shown the actual
due on the date of issuance of the disputed cheque, which is the same
as mentioned in the subject cheque. Moreover, the account extract
produced on record discloses that loan is not yet satisfied by the
accused and the amount shown in the subject cheque is yet to be
recovered.
16] The learned counsel for the accused took the defence that
the disputed cheque was taken by the complainant for security of the
loan with loan application. The accused did not bring any probable
evidence on record to show that the complainant took blank cheque
with signature of the accused with the loan application or after the
serial number of disputed cheque were used by the accused which
probably shows that the cheque was issued to the bank way back.
Even the representative of the complainant denied that the disputed
cheque was obtained as a security to the loan. In absence of such
evidence, mere suggestion is not sufficient to say that the disputed
cheque is for security.
17] Considering the above aspects, I hold that the complainant
discharged his burden of proving existence of legally enforceable debt
against the accused and the disputed cheque (Exh.31) was issued by
the accused to satisfy the said debt. Accordingly, point No.1 is
answered in affirmative.
.8. S.C.C. No.3012/2021
(Judgment Exh.49.)
As to Point No.2 :
18] Bhausaheb Waghule (PW1) in his evidence stated that on
14/05/2021 he presented the cheque of the accused for encashment
with his bank. However, it returned with endorsement of “Funds
Insufficient”. In support of said oral contention, the memo of the bank
is at Exh.32 which discloses that the disputed cheque was returned
with remark of “Funds Insufficient”.
The dishonour of cheque is not disputed by the accused.
The oral and documentary evidence of the complainant discloses that
when disputed cheque (Exh.31) was presented for encashment, it
returned without honouring from the account of the accused. Hence,
point No.2 is answered in affirmative.
As to Point No.3 :
19] Bhausaheb Waghule (PW1) in his evidence affidavit
stated that after the disputed cheque returned unpaid, they issued a
notice dated 31/05/2021 through his counsel demanding the amount of
dishonoured cheque from the accused. In support of said oral
contentions, the notice was produced on record vide Exh.33.
On perusal of the notice at Exh.33, it appears that it is
dated 31/05/2021 and posted on 31/05/2021 to the accused. The said
notice was issued within 30 days from the date of receipt of memo of
dishonour of cheque (Exh.31). The postal receipt is sufficient to say
that the notice was issued. The accused did not dispute said aspect in
cross examination of the complainant. Thus, I hold that the
complainant proved the aspect of issuance of notice within stipulated
time and point No.3 is answered accordingly in affirmative.
.9. S.C.C. No.3012/2021
(Judgment Exh.49.)
As to Point No.4 :
20] The learned counsel for the accused took plea that the
mandatory notice was not served on the accused by the complainant.
Bhausaheb Waghule (PW1) in his evidence affidavit stated that the
accused received the intimation of the notice, but failed to pay the
amount mentioned in the notice. On perusal of the postal envelope of
notice at Exh.33, it appears that the envelope was refused to accept.
The address shown in the notice and the complaint and loan papers is
one and the same. The summons of the case also served to the accused
on said address. Therefore presumption of issuance of notice on correct
address lies in favour of the complainant. The accused no where stated
the address shown in the notice is not of her. Therefore, refusal of
notice itself is sufficient to say that the accused got intimation of it.
Nothing is on record to show that within 15 days after receipts of
notice the accused deposited the amount of dishonoured cheque. Thus,
I hold that the complainant proved that instead of receipt of notice,
the accused failed to comply it and accordingly, I answered point No.4
in the affirmative.
As to Point No.5 :
21] Record discloses that the complaint was filed on
02/07/2021 which is within one month of expiration of 15 days from
the receipt of notice to the accused. Considering the above points No. 1
to 4 and filing of the complaint within limitation, it is clear that the
accused committed an offence punishable under Section 138 of N.I.
Act.
22] Heard the accused and learned counsel for the accused as
well as the complainant on the point of sentence. The accused and his
.10. S.C.C. No.3012/2021
(Judgment Exh.49.)
counsel submitted that entire family of the accused is depend upon
her. She is only bread earner of the family and female in the family to
look after other family members therefore, lenient view be taken. Per
contra, the learned counsel for the complainant requested to impose
full punishment provided under the law.
23] The basic object of the N.I. Act is to enhance creditability
of cheque transactions. The Spirit of the N.I. Act is that it is
predominantly a civil law but to ensure that the drawer discharges his
liability, a tint of criminal law has been added to it. Therefore, the
court has to balance the rights of the complainant and the accused and
also to enhance access to Justice. The intension of the provisions of
awarding punishment was to ensure that the complainant shall
receive the amount of cheque with costs and interest. Sentence in
default can also be imposed. The primary object to the provisions of
section 138 of N.I. Act is not to penalize the wrongdoer but to
compensate the victim.
24] Noting is on record to show that the accused is habitual
one. The accused is female and running eatery/mess and having young
age. In such circumstances, imposing full punishment and sending her
to the jail for two years will not be proper.
25] Considering, the above aspects and submissions of the
accused, in my view imposing the sentence of one month is suffice to
give her a message that she should obey and honor any negotiable
instrument in future and imposing fine amount of Rs.88,000/ for
dishonourment of the cheque, of which the case is filed on 02/07/2021
is suffice. If the amount of fine is given to the complainant towards
.11. S.C.C. No.3012/2021
(Judgment Exh.49.)
compensation, then he will also get the amount of dishonoured of
cheque with interest and costs of the proceeding which will suffice to
meet the ends of justice. Hence, point No. 5 is answered accordingly
and in conclusion to point No.6 following order is passed:
ORDER
1] Accused– Dolly Vinod Anand, R/o.House No.11, Sindhi
Colony, Tarakpur, Tal. & Dist.Ahmednagar is hereby
convicted by virtue of Section 255(2) of Cr.P.C. for the
offence punishable under Section 138 of N.I. Act.
2] The accused is sentenced to suffer simple
imprisonment for a period of one month and pay fine
of Rs.88,000/ for the offence punishable under Section
138 of N.I. Act and in default to pay the fine amount,
the accused shall undergo simple imprisonment of one
month.
3] Total fine amount be paid to the complainant as a
compensation.
4] Accused is directed to surrender her bail bonds and
surety bonds.
(Maya A. Deshmukh )
Date: 18.01.2023 Addl. Chief Judicial Magistrate
(Court No.10), Ahmednagar
