Bombay High Court
Mohammed Faizen vs Kiran Dnyandev Hinkule And Anr on 11 September, 2023
Bench: S. V. Kotwal
2023:BHC-AS:26702
Gokhale 1 of 7 5-apl-1098-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1098 OF 2023
Mohammed Faizen ..Applicant.
Versus
Kiran Dnyandev Hinkule & Anr. ..Respondents
__________
Mr. Advait U. Shukla a/w. Kunal D. Ambulkar for Applicant.
Mr. A. R. Patil, APP for State/Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 11 SEPTEMBER 2023
PC :
1. The Applicant has challenged the order dated
05.07.2023 passed by the Judicial Magistrate, First Class, 6 th
Court, Belapur, Navi Mumbai, below Exhibit-40 in S.C.C.No.4394
of 2022 thereby directing the applicant to pay interim
compensation of 10% of the cheque amount.
2. Heard Shri. Advait Shukla, learned counsel for the
Applicant and Shri. A. R. Patil, learned APP for the State.
3. Learned counsel for the Applicant submitted that, there
was no legally enforceable liability, as far as, the present applicant
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is concerned. The averments in the complaint are not correct. The
invoices annexed to the complaint do not tally to constitute
amount of Rs.48,56,188/- which is the amount of the cheque. He
submitted that, there is no acknowledgment issued by the
applicant for having received any goods from the complainant i.e.
the Respondent No.1 herein. Learned counsel relied on an
agreement between the Applicant and one R.V. K. Traders through
Vaibhav Thombre mentioning the same cheque in the agreement.
This agreement shows that, there was a contract between the said
R.V.K. Traders and the applicant. The Respondent
No.2/complainant has signed as a witness on that agreement.
Therefore, this agreement shows that the averments in the
complaint are not correct.
4. Learned counsel for the applicant relied on the
Judgment of a Single Judge Bench of this Court in the case of
Ashwin Ashokrao Karokar Versus Laxmikant Govind Joshi1. He
relied on paragraph-41 of the said Judgment. In that case, there
were observations that, if the cheue is not presented during the
1 2022 SCC OnLine Bom 8577
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period of its validity; the notice not having been issued in the
stipulated time and the memo of dishonour of was not placed on
record, then in such case, as an illustration, the complaint may not
be maintainable and in such case the interim compensation may
not be awarded.
5. Learned counsel for the applicant also relied on the
order of the Hon'ble Supreme Court in the case of Nitya
Dharmananda @ K. Lenin & Anr. Versus Sri Gopal Sheelum Reddy
also known as Nithya Bhaktananda and Anr. in Criminal Appeal
No.2114 of 2017 with Criminal Appeal No.2115 of 2017 -State of
Karnataka Versus Gopal Sheelum Reddy also known as Nithya
Bhaktananda wherein it was held that, if the Court is satisfied that,
there is material of sterling quality which has been withheld by the
investigator, the Court is not debarred from summoning or relying
upon the same even if such document is not a part of the charge-
sheet.
6. I have considered these submissions. I have perused the
complaint and I have perused the impugned order. The complaint
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mentions that the complainant was running a business of
supplying onions and potatoes in wholesale rate to the customers.
The applicant used to purchase onions and potatoes for his
business. Initially, the transactions between them were smooth. In
February 2022 i.e. between 17.02.2022 to 26.02.2022 the
applicant ordered onions worth Rs.48,56,188/- and assured the
complainant that he would pay the bill amount within a few days.
The amount was not paid. The complainant had delivered the
onions on credit. The complainant continuously followed up with
the applicant/accused for the due amount. The applicant issued
the cheque bearing No.629414 dated 20.04.2022 for an amount of
Rs.48,56,188/- issued on the Central Bank of India, Mumbai. The
cheque was dishonoured and after following due procedure the
complaint was lodged.
7. During trial, the Applicant's plea was recorded. He
pleaded not guilty. Thereafter the learned trial Judge after hearing
both the sides passed an order U/s.143-A of the Negotiable
Instruments Act (hereinafter referred to as 'N.I.Act') and directed
the applicant to pay 10% of the total cheque amount within 60
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days from the date of order i.e. 05.07.2023. The learned Judge
recorded the submissions of both the sides. After considering the
submissions, using his discretion, the learned trial Judge passed
the impugned order directing payment of 10% of the cheque
amount.
8. A copy of the cheque is annexed at Page No.89 of this
application memo. The payee mentioned in the said cheque is Star
Logistics i.e. the complainant's firm. Thus, there is a prima facie
case in favour of the complainant. The same cheque was
dishonoured and, therefore, there is a presumption U/s.139 of the
N.I.Act which the applicant/accused will have to rebut during trial;
which reads thus:--
"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."
9. Apart from that, there is another presumption U/s.118 of
the N.I. Act. Thus, both these presumptions, at this stage, act in
favour of the complainant which the applicant/accused will have
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to rebut during trial. Ratio of Ashwin Ashokrao Karokar's judgment
(supra) is not applicable to the present case. The difference
between defence of the applicant and the averments in the
complaint can only be decided during trial after the evidence is
led. At this stage, it can't be held that the complaint is false and
hence not maintainable. Therefore, reliance on this Judgment is
misplaced. In the context of the ratio of Nitya Dharmananda @ K.
Lenin's case (supra), it is not possible to record at this stage that
the copy of the agreement between the applicant and R.V. K.
Traders is of such sterling quality that it has to be accepted at this
stage.
10. As far as, reliance on the agreement referred to herein
above is concerned, it is a matter of defence of the accused and a
copy of the said agreement cannot be said to be a document of
such sterling quality which this Court can rely on to record the
finding about its genuineness and about actual transaction
between the parties. This can be decided at the trial after evidence
is led by both the sides. Therefore, at this stage, no reliance can be
placed on this document to hold that the complainant's case is
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prima facie not true. The same reasoning applies to the invoices
annexed to the complaint. The learned trial Judge has exercised
his discretion through a well reasoned order. I do not see any
reason to interfere with the impugned order and with the statutory
requirement of Section 143-A of the N.I. Act.
11. The Application is rejected.
(SARANG V. KOTWAL, J.)
