1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO.170 OF 2010 in STAMP NUMBER MAIN NO.733 OF 2010 Shri Thomas Pinto, 30 years of age, married, Indian National, Residing at 1, Golden Golda, Colva, Salcete-Goa. … Applicant V/s 1. Shri Sebastian Cardozo, aged 30 years, married, Indian National, Residing at 1, Hotel Colva Plaza, Colva-Margao Road, Per Seraulim, Salcete-Goa. 2. State of Goa, Through its Public Prosecutor, Panaji-Goa. …. Respondents Mr. Shivan Dessai, Advocate for the Applicant. Mr. M.P. Almeida, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 20th SEPTEMBER, 2010 ORDER : The complainant seeks leave to appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by judgment/order dated 30/12/2009 of the learned Sessions Judge, Margao. 2. The case of the complainant is that the complainant had given a loan to the accused in the sum of Rs.1.30 lacs on 14/06/2001 or 2 thereabout, upon the accused issuing a postdated cheque dated 3/04/2002 and a hundi in the like sum. 3. There is no dispute that the said cheque when presented for payment was returned dishonoured and upon notice issued to the accused the same was not complied with. Accordingly, the complainant filed his complaint on 23/09/2004 and examined himself in support of the same. The complainant did not examine one Francis who was along with him when the complainant had given the said amount to the accused. 4. The case of the accused was that the amount was taken by him and his two brothers namely Mario Cardozo and Vincy Cardozo and the hundi was signed by all three of them and the subject cheque was issued as a collateral security towards the hundi of Rs.1 lac. The accused examined himself as well as his brother Mario Cardozo in support of the defence. 5. The evidence of the complainant shows that the complainant had not produced the subject chequie Exhibit 32 and by virtue of order dated 5/02/2005 both the parties were directed to produce the cheques held by them. The original was produced by the complainant - Exhibit 32 and a coloured photocopy was produced by the accused - Exhibit 33. 3 According to the accused, this coloured photocopy was given by the complainant to the father of the accused as the original, after the father of the accused made a payment of Rs.50,000/- by cheque on 2/08/2002. According to the complainant, the original Exhibit 32 was taken by the accused as he wanted to show it to his father and after taking a photocopy in Rangvi Building in his presence, the accused had returned the same to the complainant, but the accused did not pay the amount to the complainant. 6. The learned first appellate Court came to the conclusion that it was difficult to believe that apart from the loan transaction between the complainant and the accused, there was any other loan. Regarding the return of the cheque, the learned appellate Court observed that it was difficult to believe that the accused had taken a photocopy of the original only to show his father since the father was not at all connected with the payment due on the cheque. The learned first appellate Court also took note of the fact that even after filing of the complaint there were several payments made to the complainant of Rs.12,725/- on 5/06/2002, Rs.50,000/- on 5/08/2002 which were proved by the accused by certificates produced which created a doubt as regards the truthfulness of the case of the complainant. The learned first appellate Court thereafter noted that the learned JMFC had not at all considered the cross-examination of the complainant and the defence evidence of 4 the accused and his brother. The learned first appellate Court came to the conclusion that the accused had created reasonable doubt in the case of the complainant and, therefore, he was entitled to an acquittal. 7. Shri Shivan Dessai, the learned Counsel appearing on behalf of the complainant, submits that there is no dispute that the subject cheque was issued by the accused to the complainant and, therefore, there was a presumption in favour of the complainant that the cheque was issued towards the payment of a legally enforceable debt. Learned Counsel further submits that the learned first appellate Court proceeded on the basis of the judgment of the Apex Court in Krishna Janardhan Bhat V/ s. Dattatraya G. Hegde (2008 (4) SCC 54) which cannot be considered to be good law in the light of a three Judge judgment of the Apex Court in the case of Rangappa V/s. Sri Mohan (AIR 2010 SC 1898) in which the Apex Court had reiterated legal position that the presumption mandated by Section 139 of the Act does not extend to the existence of a legally enforceable debt or liability and to that extent the impugned observation in Krishna Janardhana Bhat may not be correct. Learned Counsel has also placed reliance on the judgment of the Apex Court in the case of Mandvi Co-op. Bank Ltd. V/s. Nimesh B. Thakore (AIR 2010 SC 1402) in support of the preposition that the accused could not have led any evidence on affidavit. However, it may be observed, that in this case the accused and his brother did lead evidence on affidavit 5 without any objection on the part of the complainant. The complainant extensively cross-examined the accused. However, for the purpose of this case it is not at all necessary to enter into the said controversy. 8. The lengthy cross-examination of the complainant shows that the complainant had admitted certain payments having been made to him, but had tried to explain the same as having been made by the father of the accused towards the loan given by the complainant to the father of the accused. In fact, the complainant had admitted having received a sum of Rs.55,725/- between 8/01/2002 and 4/06/2002 on four occasions. The complainant had also admitted that another sum of Rs.30,000/- was paid in January, February and March, 2002 adding that these sums were paid by the father of the accused towards the loan taken by him. Further, the complainant had admitted that he had taken food at Silver Sand Hotel and had signed the bills totaling to a sum of Rs.44,541/-. The complainant had further admitted that on 2/08/2002, a sum of Rs.50,000/- was paid to the complainant which was debited to his account. According to Shri Almeida this sum of Rs.50,000/- was paid to the complainant by cheque on 2/08/2002 and this is the time when the complainant returned the cheque to the father of the accused deceitfully retaining the original. 9. The case of the complainant that any loan was at all advanced to 6 the father of the accused is a fact which was not at all pleaded by the complainant in his complaint nor supported by him by any evidence whatsoever. The complainant first stated that the father of accused had taken a loan of Rs.1 lac and the same was paid by him. Next, the complainant stated that the loan taken was about Rs.80,000/- and was repaid by cheque of Rs.1 lac. Then again he stated the loan was repaid in small amounts by cheques details of which he did not remember. Finally, in further cross-examination, the complainant stated that he did not remember in which year the said amount was paid back to him or from where he had secured the amount to be paid to the father of the accused. After having made the said inconsistent statements and after a sustained cross-examination, on a next date, the complainant was compelled to admit that the amount paid by the complainant to the father of the accused was repaid in the year 2001. If that be the case, by no stretch of imagination, it could be said that the payments made subsequently in the year 2002, 2004, etc. could have been the payments made by the accused towards the loan taken by the father of the accused. They had necessarily to be towards the repayment of loan taken by the accused. 10. It is well settled that an accused discharging the burden of proof placed upon him under the statute need not examine himself. He may discharge his burden on the basis of the materials already brought on 7 record. 11. Considering the facts of the case, the accused had proved by preponderance of probability, that being the standard the accused was required to prove his defence, that the loan taken was indeed repaid by the accused and on that count that the complainant had returned the cheque to the father of the accused but trickily, not the original. 12. I find that there is no merit in this application for leave to appeal and, accordingly, the same is hereby dismissed. Complainant to pay costs of Rs.2,500/- to the accused. N.A. BRITTO, J. NH/-