1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCLELANEOUS APPLICATION NO. 132 OF 2010 IN STAMP NUMBER MAIN NO. 1345 OF 2010 Mr. Inacio Fernandes, Son of Antonio Fernandes, 42 years of age, businessman, Resident of C.S.M. Calangute, Bardez-Goa. ... Applicant versus 1. Mrs. Carol B. Fernandes, Daughter of Rocky Fernandes, 43 years of age, service, Resident of C/o. Filomena Fernandes, Chunawado, Sodiem, Siolim, Bardez-Goa. 2. State of Goa, Through Public Prosecutor, Altinho, Panaji-Goa. ... Respondents Shri Siddharth Kashalkar, Advocate for the Applicant. Ms. C. Collasso, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 20TH JULY, 2010. ORDER Complainant seeks Special Leave to Appeal, against the acquittal of the accused under Section 138 of the N. I. Act, 1881. 2 2. Heard learned Counsel on behalf of both parties. 3. The Applicant/Complainant, and the Respondent/Accused are husband and wife. The complaint was filed based on a cheque dated 22-8-2006 for a sum of Rs.12,264/- which cheque when presented for payment was dishonoured for insufficient funds, by memorandum dated 12-12-2006, and a notice having been sent by the Complainant to the accused dated 20-12-2006, the same was not replied nor complied with. The Complainant, therefore, filed the complaint dated 17-1-2007, and examined himself in support of the complaint. 4. According to the Complainant, the Complainant had given to his wife, the accused, in July, 2006, a sum of Rs.12,264/- in order to enable her to obtain an insurance policy for the Complainant, as the accused was an insurance agent, and had not completed her target. The accused did not take the policy, but gave a sum of Rs.10,000/- received by the accused to her mother as she was in need of money. According to the Complainant, the accused gave the said cheque in August, 2006 in repayment of the sum given by the Complainant. The cheque was presented by the Complainant on 12-12-2006, and was returned unpaid. 5. The Complainant was cross-examined by the accused, though 3 not effectively, and it was brought out in the cross-examination that the Complainant had filed five cases against the accused although the Complainant had stated that he did not know under what provisions of law the said five cases were filed. 6. The learned Magistrate(J.M.F.C.) has acquitted the accused on two counts: first, the learned Magistrate has come to the conclusion that the Complainant failed to prove the liability of the accused and that the cheque was given towards the liability. Second, the learned Magistrate also came to the conclusion that the cheque return memo did not have stamp of the Bank, and, therefore the Manager was required to be examined, and moreover, it could not be believed that there were no sufficient funds in the account of the accused. 7. As far as the second ground of acquittal is concerned, in my view, the same cannot be upheld. It can be seen from the cheque, that it was presented to ICICI Bank Ltd., and this can be seen from the stamp put thereon, and the memorandum dated 22-8-2006 which has been duly signed specifically mentions that the funds were insufficient. The contention raised on behalf of the accused appears to be that it was not duly stamped, but considering the stamp put on the cheque to show that it was presented for payment, and the said memorandum of return, in my view, the Complainant 4 was not required to examine the Manager of the said Bank. In this context, reference could be made to Section 146 of the N.I.Act, 1881 which provides that the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. Therefore, there was a presumption in favour of the Complainant as regards dishonour of the said cheque which the accused had failed to rebut. 8. As regards the first count, the case of the Complainant can be looked from another angle. As stated by the Complainant only from November, 2006 that the wife/accused went to reside at her mother's house. Till date, the Complainant and the accused who are married are not officially separated although it was stated by the Complainant that from November, 2006 they are living separately. If the money was given by the Complainant to the accused, admittedly it was given in July, 2006 when they were living together as husband and wife. That the accused had given the said cheque in August, 2006 appears to be little difficult to believe, in case till then the relations between the husband and wife were cordial. 9. Shri Kashalkar, the learned Counsel appearing on behalf of the Complainant submits that the said money given by the Complainant to the 5 accused exclusively belongs to the Complainant. Learned Counsel further submits that the cheque was duly signed by the accused, and, therefore there is a presumption in favour of the Complainant that it was issued for the discharge of the liability which the accused had towards the Complainant. Learned Counsel further submits that the Complainant had sent a notice to the accused at a time when they were residing separately but the same was not replied to by the accused. Learned Counsel further submits that the Complainant was free to deposit the cheque within six months, that being its validity period. 10. As already noted, there has not been much cross-examination of the Complainant by the accused except to bring on record that the Complainant had filed five cases against the accused. The Complainant and the accused, as already stated are not officially separated. They continue to be husband and wife. 11. We have in the State of Goa, Article 1108 of the Civil Code, 1867, which is in force and which provides that the marriage as per the custom of the country consists in the communion between the spouses of all their properties present and future, not excluded by law. The said communion ends by the dissolution of the marriage or by separation in accordance with law, in terms of Article 1121 of the same Code. Therefore, when the Complainant stated that he gave Rs.12,264/- to the accused to obtain an insurance policy for 6 him, the Complainant gave the money which also belonged to the accused, i.e. the money which was the property of the couple in which the accused would have half share. The Complainant did not give it to the accused as a debt to be repaid, and if that be so, the cheque which the accused gave to the Complainant is for an amount which is more than which would have been due by the accused to the Complainant. It has been consistently held by this Court when the cheque is for an amount which is more than due by the accused to the Complainant no offence under Section 138 of the Negotiable Instruments Act is made out.(See Laxmikant Karmadi(2006 Bom.C.R.(Cri.) 830). 12. Viewed thus, the acquittal of the accused cannot be faulted. There is no merit in this application for special leave and the same is hereby dismissed. N. A. BRITTO, J. RD