1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL MISC. APPLICATION NO. 219 OF 2009 Shri Francy Gonsalves, Major of age, resident of House No.303, Near Regina Mundi School, Alto Chicalim, Vasco Da Gama, Goa. .. Applicant v e r s u s 1. Shri Rama F. Bhaip, Major of age, R/o. House no.48, Bhatwadi, Chandel, Pernem, P.O., Pernem, Goa. 2. State, Through Public Prosecutor. .. Respondents Mr. Rohit Bras De Sa, Advocate for the applicant. CORAM: N. A. BRITTO, J. DATE : 18TH SEPTEMBER, 2009. ORAL ORDER 1. The complainant seeks leave to appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, 2 by Judgment dated 30.4.09. 2. Heard Shri Rohit Bras De Sa, the Learned Counsel on behalf of the complainant. 3. The case of the complainant was that the complainant as well as the accused were businessmen and the accused owned a Mini Bus bearing No. GA-03-T-5412 and the complainant came in contact with the accused in connection with the said bus. The case of the complainant is that on 1.4.08 the complainant gave a hand loan to the accused in the sum of Rs.3,00,000/-. It is not the case of the complainant that on that date any receipt was issued by the accused. Further, it is the case of the complainant that towards the repayment of the loan, the accused issued a cheque dated 6.5.08 for the sum of Rs.3,00,000/-. There is no dispute that the said cheque was deposited by the complainant for encashment on the same day and was returned dishonoured on the ground that the funds were insufficient. The complainant sent a legal notice which was refused by the accused and, therefore, the complainant filed a complaint against the accused and examined himself in support of the same. 3 4. The case of the accused was that the complainant's case was false. It was his case that he did not get the legal notice. The accused also examined himself and stated that he had not taken any hand loan from the complainant as stated by the complainant. The accused stated that he had taken only Rs.60,000/- from the complainant for the purchase of a bus. There is no dispute that this sum was paid by the complainant to the accused by cheque and the accused also repaid the same to the complainant, by cheque. The accused further stated that at the time of payment of Rs.60,000/- the complainant had obtained three blank cheques out of which the complainant presented one cheque in his bank and filed a false case against him. There is also no dispute that the cheque was signed by the accused in Devanagri and it was filled in Roman and the accused stated in his evidence that the handwriting on the said cheque was not his. 5. The complainant was asked on 5.12.08, in his cross examination, whether he had shown the sum of Rs. 3,00,000/- in his income tax returns and the complainant stated that he would have to 4 check and see if it was shown on the income tax returns. On the next date i.e. 2.1.09 the complainant produced balance sheet signed by Suresh S. Kittur & Associates, Chartered Accountants, and although it was objected to being produced, it was marked as Exhibit C-24. However, the fact remains that the said Suresh Kittur was not examined in support of the said balance sheet and the Learned trial Court has also observed, and in my view rightly, that the said balance sheet also did not carry the seal of the Income Tax Department. That apart, what the said balance sheet shows is that a loan to the accused, and, presumably in relation to the said Mini Bus No. GA-03-T-5412, in the sum of Rs.6,60,000/-. In other words, the balance sheet does not show either the loan of Rs. 3,00,000/- which is disputed or Rs.60,000/- which was admitted. The Learned trial Court, therefore,could not be faulted in not placing any reliance on the said balance sheet as a document of proof in support of the loan of Rs.3,00,000/- advanced by the complainant to the accused. It appears that the said balance sheet was tailored only after the complainant was asked in cross examination about the same on 5.12.08 . There is no dispute that there was also an agreement between the complainant and the accused in writing regarding the purchase of the bus 5 which was subsequently cancelled and the amount of Rs.60,000/- taken by the accused was returned to the complainant. Infact no much dent has been made by the complainant into the evidence given by the accused in support of his plea that at that time three cheques were given by the accused to the complainant. The subject cheque was only signed by the accused in Devanagri. The complainant might have stated in his cross examination that the subject cheque was brought by the accused with the rest of the contents written, a fact which was not denied by the accused but the accused also had in equal categorical terms had stated that he had not filled in the cheque except the signature which was signed by him in vernacular, a fact which again was not denied on behalf of the complainant. The accused in this case, by his own evidence as well as that of the complainant, had clearly made out a case that the consideration was improbable and thus it was for the complainant to prove that indeed the complainant had lent a sum of Rs.3,00,000/- to the accused in repayment of which the accused had given the subject cheque to the complainant. There was already a written agreement between both the parties and it is therefore doubtful whether the complainant would lend Rs.3,00,000/- on 1.4.08 without any receipt only to wait to obtain a 6 cheque on 6.5.08 from the accused. 6. Considering the above, the view taken by the Learned Magistrate is plausible and reasonable and therefore the acquittal of the accused cannot be faulted. The fact that the accused did not reply to the notice could be considered only as one of the circumstance and the same is not sufficient to hold the accused guilty. I find that this is not a fit case to grant leave to appeal to the complainant which would be sheer waste of the time of the Court and further harassment to the accused. 7. Application, therefore, is hereby dismissed. N.A. BRITTO, J. oc. 7