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2019 Supreme(Bom) 1483
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, J.
Nazim Karim Mumbrawala - Appellant
Versus
Keshava Prasad H.A. - Respondent
Criminal Writ Petition No. 886, 887, 888, 889 of 2019
Decided On : 03-10-2019
Advocate Appeared:
Mallika A. Ingale, Adv., Aditya Mehta, Adv., Rutuja Ambekar, Adv.
Headnote:
Negotiable Instruments Act - Section 138 - Post dated cheques issued in a criminal case – Dishonored of cheque – Claim of compensation - Thereafter the complainant issued statutory demand notice to the accused through his advocates letter dated 08/02/2017 by calling upon the accused to make the payment of both the cheques totally amounting to Rs.4 Lakhs within 15 days from the receipt of the said demand notice. It is alleged that the notice sent to the accused at his first address was returned as undelivered with postal remark "unclaimed, return to sender", however, according to the complainant, the notice sent to the accused at his second address was neither return nor the advocate of the complainant has received acknowledgment thereof. It is the case of the complainant that in spite of the receipt of demand notice dated 08/02/2017, the accused failed to make the payment of the said cheques within the stipulated period – Held, Considering the material on record, the complainant has succeeded in showing that all the essential ingredients of offence under Section 138 have been attracted. It is a settled law that onus lies upon the accused to rebut the presumption and to establish that the cheques in question were not given in respect of any debt or liability, with the standard of proof being preponderance of probabilities. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge - In view of the aforesaid facts and circumstances, prima facie the complainant has succeeded in showing that the accused has issued the cheques in discharge of legally enforceable liability, which were dishonoured on their presentation, and that the Petitioner accused failed to make payment of the cheques. The complainant has issued demand notice dated 08/02/2017 calling upon the accused to make the payment of the cheques, and when the notice was returned as undelivered with post remarked unclaimed, the complainant sent a notice on the second address of the Petitioner which was neither return nor the advocate of the complainant has received any acknowledgment thereof. According to the complainant in spite of the receipt of demand notice dated 08/02/2017, the accused failed to make the payment of the said cheques within the stipulated period. On the face of the complaint and, considering the act of the Petitioner by stopping the payment of the cheques issued in favour of the complainant, and having regard to the material and documents placed on record, it can be said that the ingredients of the alleged offences have been attracted – Petition dismissed
JUDGMENT :
S. S. SHINDE, J.
1. The above group of Petitions filed by the Petitioner, who is original accused, challenging the orders passed by the learned Magistrate thereby issuing process against the Petitioner in four Complaints filed by Respondent No.1 herein under Section 138 of the Negotiable Instruments Act on account of dishonour of the post dated cheques mentioned in the Consent Terms arrived at between the Petitioner and Respondent No.1. It is submitted across the bar that the facts involved in all the above Writ Petitions are similar. In all the four Writ Petitions the Petitioner challenges the orders of issuing process against him. The Petitioner-Accused and Respondent No.1-Complainant are the same in all the four Writ Petitions. However the complaints and cheques are different. In Writ Petition No.886 of 2019 the Complainant No. is 2505/SS/2017 and Cheque Nos. are 000043 dated 18/10/2016 and 000044 dated 18/12/2016; in Writ Petition No.887 of 2019 the Complainant No. is 4531/SS/2017 and Cheque No. is 000047 dated 18/04/2017, in Writ Petition No.888 of 2019 the Complainant No. is 3589/SS/2017 and Cheque No. is 000046 dated 18/02/2017 and, in Writ Petition No.889 of 2019 the Complainant No. is 6623/SS/2016 and Cheque No. is 000042 dated 18/08/2016. Therefore, by consent of the learned counsel for the parties, all the four Writ Petitions are heard together and being disposed of by this common judgment and, Writ Petition No.886 of 2019 is being treated as a lead matter.
2. Rule in all the Writ Petitions, with the consent of the learned counsel for the parties made returnable forthwith and heard finally at the admission stage.
3. Writ Petition No.886 of 2019 takes an exception to the order dated 27/04/2018 (actual date is 27/04/2017) passed by the learned Metropolitan Magistrate, 48th Court, Andheri, Mumbai thereby issuing process against the Petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act.
4. The facts giving rise to filing of Writ Petition No.886 of 2019, can in brief, be stated as under :-
The Petitioner herein is original accused in the complaint being CC No.2505/SS/2017 filed by Respondent No.1 before the Metropolitan Magistrate, 48th Court, Andheri, Mumbai for the offence Punishable under Section 138 of the Negotiable Instruments Act. Respondent No.1 herein is the original complainant. It is the case of the complainant in the said complaint that, he had paid the huge amount, which was transferred by the mother of complainant directly in the account of the accused and his wife, for purchasing the flat for the complainant himself in Mumbai, but the accused had cheated the complainant for their wrongful gain. The Complainant i.e. Respondent No.1 herein therefore had lodged FIR vide CR No.104 of 2011 on 16/02/2011 against the Petitioner, his wife Mrs. Zubeda Nazim Mumbrawala and his daughter Ms. Samina Nazim Mumbrawala initially for the offence under Section 420, 34 of the Indian Penal Code, however, later on added Sections 406, 465, 467, 468 of the Indian Penal Code. It is further the case of the complainant that the Petitioner-accused and his wife were arrested in the said case at the initial stage and subsequently the daughter was arrested. It is further the case of the complainant that the accused approached him and requested to settle the entire dispute, and for that the accused agreed to pay Rs.12 Lakhs as full and final settlement. Accordingly the Consent Terms dated 17/06/2016 was executed between the complainant and the accused, which was submitted in the Court proceedings wherein the accused had admitted the liability of Rs.12 Lakhs in favour of the complainant. It is also the case of the complainant that as per clause 1(a) of the said consent terms, the accused paid Rs.2 Lakhs by pay order, and towards the payment of balance amount of Rs.10 Lakhs the accused issued five post dated cheques in favour of the complainant, each amounting to Rs.2 Lakhs. According to the compla
