1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 4 OF 2008 Mr. Joslyn de Souza Major, married, service, Indian National, Residing at Terreiro Vaddo, Siolim, Bardez, Goa. .... Appellant V/s Mr. Marcus de Souza, Major, Unmarried, Service, Indian National, Residing at House No. 492, Bountavaddo, Assagao, Bardez, Goa. .... Respondent Mr. V. Menezes, Advocate for the Appellant. Mr. J. Godinho, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 18th FEBRUARY, 2009 ORAL JUDGEMENT : This is a Complainant’s appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by judgment/order dated 28/11/2006 of the learned JMFC, Mapusa. 2. The case of the Complainant, in brief, is that the Complainant at the request of the accused had given a friendly loan of Rs.3 lacs on various occasions and the accused in part payment of the said loan 2 issued a cheque dated 15/02/2003 for Rs.1,50,000/-, drawn on Centurion Bank, Panaji, Goa and when the said cheque was presented to HDFC Bank, Vasco-da-Gama, on 19/02/2003 it was dishonoured with endorsement “funds insufficient”, whereupon the Complainant sent a lawyer's notice to the accused dated 28/02/2003, which was returned with endorsement “addressee refused, return to sender”. In support of his case, the Complainant examined himself and so did the accused. The Complainant as well as the accused examined the Bank Manager of the Bank where the accused was holding an account. The Complainant examined him as PW2 and the accused examined him as DW2. The accused also examined DW3/George Costa, Manager of HDFC Bank, Vasco-da-Gama, where the Complainant had his account to prove the plea taken by him that the accused had received a sum of Rs.20,000/- from the Complainant, by cheque on or about 10/05/2002. 3. The case of the accused was that the cheque was given to the Complainant for the purchase of a flat at Sancoale and as the accused was unable to purchase the said flat, the cheque had remained with the Complainant, as there was a condition of Goa Housing Board not to sell the flat for a period of 5 years. 3 4. At the hearing of the present appeal, on behalf of the accused, it has been submitted by Shri Godinho, learned Counsel on behalf of the accused that the accused is willing to pay the said amount of Rs. 20,000/- to the Complainant, and if required, with interest. A statement of account of the Complainant, was also produced by the accused to prove that all that he had received from the Complainant was a sum of Rs. 20,000/- and to disprove the claim made by the Complainant that a sum of Rs.1 lac was advanced by the Complainant to the accused by way of cheque. 5. The learned trial Court noted, and in my view rightly, that there was a presumption in favour of the Complainant that the cheque was issued for consideration and that the accused had sufficiently rebutted the said presumption. The learned trial Court also found that the defence raised by the accused was probable and thus the accused had rebutted the presumption available to the Complainant. 6. The Complainant did not set out either in the complaint or in his affidavit in the evidence, as to when or how the loan of Rs.3 lacs was disbursed to the accused, but, in his cross-examination the Complainant stated that a sum of Rs.30,000/-, Rs.50,000/-, Rs.50,000/- and another 4 sum of Rs.50,000/- were paid in cash to the accused, again even without specifying the dates on which they were paid, and, further stated that for the 5th time, he gave to the accused a cheque for Rs.1 lac and for the 6th time he gave another cheque of Rs.20,000/-. In further cross- examination, the Complainant stated that he could give the cheque numbers of the cheques given by him to the accused but could not give the bank statement of his account, although the cheques were encashed. The Complainant also admitted that he had not taken any receipt for the amounts given by him in cash to the accused. Learned Counsel on behalf of the Complainant had submitted that the Complainant was not called upon to produce the bank statement. The question is not of the Complainant being called upon to produce the bank statement. It was categorically suggested to the Complainant that he could not produce bank statements showing that the accused had encashed the cheque as only a sum of Rs. 20,000/- was due by the accused, a suggestion, which the Complainant denied. In case the Complainant wanted the Court to believe his statement, it was for the Complainant to have supported the same with available evidence. A party is expected to produce the best evidence available. In case that is not done, the party runs the risk of not being believed. The Complainant was unable to substantiate his statement not only as regards the sums alleged to have been paid by 5 cash but also the payment of Rs.1 lac by cheque. On the contrary, the accused produced the statement of account of the Complainant which discloses that only an amount of Rs.20,000/- was advanced by the Complainant to the accused on 10/05/2002. The accused by the production of the statement of the account of the Complainant through DW3/George Costa has disproved the statement of the Complainant that he had advanced a sum of Rs.1 lac on the 5th occasion by cheque. Thus the Complainant failed to produce any convincing proof as regards the payment of Rs.1,80,000/- by cash on different occasions as well as by cheque of a sum of Rs.1 lac. 7. On further cross-examination, the Complainant stated that when he filed the present complaint, there were no cheques of the accused with him, but then he changed the said statement, and stated that there were two cheques of the accused with him at the time the complaint was filed and that the amount for the previous cheque which bounced was Rs.50,000/-. Counsel on behalf of the accused has categorically stated that there was no case filed by the Complainant of bouncing of any cheque of Rs.50,000/-. Here again it is difficult to believe the Complainant that the Complainant would remain quiet in case of a cheque of Rs. 50,000/- given by the accused had bounced. There is not 6 a single aspect of the case of the Complainant which could be believed, except that the Complainant had paid an amount of Rs.20,000/- by cheque which has been admitted by the accused. 8. On the other hand, the accused categorically stated, in his evidence before the Court that he had owed to the Complainant only Rs.20,000/-, which as already stated, the accused has stated that he is willing to pay to the Complainant. The accused has further stated that he did not owe any amount to the Complainant besides the amount of Rs.20,000/-. The accused has further stated that he was supposed to buy flat at Sancoale and for which he had given to the Complainant two blank cheques. That the Complainant had two cheques of the accused is also a fact admitted by the Complainant. The accused further stated that the deal did not materialize, as the flat was not to be transferred for 10 to 15 years as per the conditions imposed by the Goa Housing Board. It is true that the accused ought to have recalled the said two cheques which the accused did not. The accused denied that he had issued a written cheque to the Complainant for an amount of Rs.1,50,000/-. He further stated that the agreed price was Rs.5,50,000/- for the said flat. The learned trial Court on the analysis of evidence both of Complainant and accused and other evidence produced has 7 rightly come to the conclusion that the case of the accused appears to be more probable. In fact the Complainant had miserably failed that he had advanced any amount to the accused either by cash or by cheque except Rs. 20,000/-, which was given to the accused way back on or about 10/05/2002. 9. Counsel on behalf of the accused has placed reliance on Krishna J. Bhatt V/s. Dattatraya G. Hegde (2008 (4) SCC 54). 10. Consequently, in my view, the acquittal of the accused cannot be faulted. The case of the Complainant is entirely based on falsehood and therefore the appeal deserves to be dismissed with costs. Costs are fixed at Rs. 5,000/- to be paid by the Complainant to the accused. N.A. BRITTO, J. NH/-