1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 258 OF 2009 The Quepem Urban Co-operative Credit Society Ltd. having its Registered Head Office at Cindio apartments, Quepem-Goa; represented by its Attorney Shri Satyawan Narayan Velip, aged about 33 years, s/o Shri Narayan Velip, service, married, r/o Bendurdem Balli, Quepem, Goa. ... Applicant versus 1. Smt. Safia Shaikh, Major of age, R/o H. No.16, Housing Board, Davorlim, Salcete, Goa. 2. State through the Public Prosecutor. ... Respondent Shri V. A. Lawande, Advocate for the Applicant. CORAM : N. A. BRITTO, J. DATE : 31ST AUGUST, 2009. ORAL ORDER The complainant seeks Special Leave to Appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 5-5-2009 of the learned Magistrate, Quepem. 2 2. The complainant is an Urban Co-operative Credit Society Limited, who had disbursed to the Respondent/Accused a loan of Rs.10,00,000/- on different occasions. The subject matter of the complaint is a cheque dated 15-2-2008 in the sum of Rs.12,14,554/- which admittedly when presented for payment was dishonoured. 3. The complainant, therefore, by statutory notice dated 27-2-2008 called upon the accused to make the payment of Rs.12,14,554/- within a period of fifteen days. The accused replied to the said notice dated 20-3-2008, inter alia, stating that at the time of release of the first instalment, the complainant had obtained four blank cheques without any name, date and without any amount written thereon, except for the signature of the accused which four cheques were issued purely on security basis of the loan amount and not for depositing the same in the bank for the purpose of encashment. It was further stated that the accused was illiterate and knew only to sign and was unable to read and understand English language. 4. Learned Counsel on behalf of the complainant submits that the reply of the accused dated 20-3-2008 which is at page 56 of the paper book, was otherwise not produced either by the complainant or by the accused in the evidence before the learned trial Court. It may be so, but the fact remains that the reply was sent by the accused. The complaint having been filed, the complainant's Recovery Officer and Attorney was examined in support of the complaint. The accused did not lead any evidence. The complainant's attorney does not appear to have been at all conversant with the facts of the case or the transaction between the complainant and the accused. 3 5. The learned trial Court held that it was for the complainant to prove as to how an amount of Rs.12,14,554/- was due and payable to the complainant within eight months of sanction of the loan of an amount of Rs.5,00,000/- and by no stretch of imagination it could be said that the accused was due and payable a sum of Rs.12,14,544/- on a loan of Rs.5,00,000 as on 15-2-2008, and the complainant taking advantage of the cheque lying with the complainant, given as security, the complainant inserted a huge amount in undated blank cheque and presented the cheque for collection, and, consequently, proceeded to acquit the accused holding that the complainant had failed to prove that on the date of issue of the cheque there was an existing debt of Rs.12,14,544/-. 6. Shri V. A. Lawande, the learned Counsel appearing on behalf of the complainant has drawn my attention to some of the observations of the learned trial Court in para 16 of the impugned Judgment wherein it was stated as follows:- "Reverting back to the facts of the present case it is admitted by accused fact of granting loan to her by the Complainant's society, Accused admitted issue of disputed cheque to the Complainant, accused, also admitted her signature on disputed cheque. Above proved facts constitute factual basis for raising presumption that complainant received the cheque for the discharge of the debt or other liability of the nature envisage by section 138 as rightly held by the Apex Court in two judgments and that the burden is on the accused to prove that the cheque was not issued in discharge of legal debt or other liability". 4 7. Learned Counsel has further submitted that there is no dispute that the accused had received from the complainant a sum of Rs.10,00,000/- on two occasions. Although, the evidence of the complainant is clear that the sum of Rs.5,00,000/- was disbursed to the accused on 21-6-2005 there is no statement in the evidence of the complainant as to when the second loan of Rs.5,00,000/- was disbursed, and, in fact, the learned Counsel for the complainant has not been able to point out to any statement of the complainant to that effect. It appears that upon disbursement of the said amount there was a moratorium for a period of two years during which the accused was not required to pay any instalments due, on the principal amount though he was otherwise required to pay the interest due on the sums advanced. 8. The inference drawn by the learned trial Court that the complainant completed one of the blank cheques issued by the accused in the sum of Rs.12,14,554/- and presented it for payment, in my view, cannot be faulted. The complainant's witness has admitted that the accused is an illiterate person and knows only to sign and is unable to read and understand English language. He also admitted that three blank cheques given by the accused were not returned. If that be so, it is but obvious that the complainant did have the blank cheques given by the accused. 9. The complainant's witness at one stage stated that the amount of Rs.12,14,554/- was calculated as on 15-12-2008 with interest at the rate of 12.5% per annum. At another stage, he stated that the amount of Rs.11,55,259/- was calculated as on 22-11-2007 with interest at the rate of 10.5%. The complainant could have 5 easily produced a statement of account of the accused but chose not to produce such a statement. Such a statement, if produced, could have clearly shown as to what were the payments made by the accused, since some of the payments made by the accused have been admitted on behalf of the complainant and what was the amount due by the accused and what was the interest applied from time to time. It could have also shown as to whether a sum of Rs.12,14,554/- was really due and payable by the accused to the complainant as on 21-6-2005. The approach of the complainant has been most casual. In my view, this is a fit case where adverse inference ought to have been against the complainant for non production of a statement of account maintained by the complainant. The complainant ought to have produced such a statement rather than making calculations of the amount payable by the accused from the witness box. The complainant could have had an implied authority to fill in the cheque in the sum of Rs.12,14,544/- as on 20-1-2005 only in case it was shown that that amount was due and payable by the accused to the complainant. 10. In the above view of the matter, in my view, the acquittal of the accused could not be faulted. This is not a fit case to grant leave to appeal. Application dismissed. N. A. BRITTO, J. RD