1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 10 OF 2007 Shri Prabhakar Rauji Shet, Major in age, R/o. H.No. 1/14, Butebhat, Vasco-da-Gama, Goa. ... Appellant V/s 1. Ms. Shrikanti M. Arolkar, D/o. Manohar Arolkar, Major in age, H.No. 303(2), R/o. Near Shri Ram Temple, Mesta Wada, Vasco-da-Gama, Goa. 2. S T A T E. Through P.P. .... Respondents Mr. A.D. Bhobe, Advocate for the Appellant. Mr. D. Pangam, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 26th FEBRUARY, 2009 ORAL JUDGMENT : This is Complainant’s appeal and is filed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 by judgment/order dated 8/09/2006 of the learned JMFC, Vasco-da-Gama. 2. Admittedly, the accused is the “rakhi” sister of the Complainant and not only that the Complainant used to regularly take the accused to her work place and bring her back first, when she was working at Chicalim, and 2 thereafter, when she was working at Panaji, as a nurse. The Complainant filed the complaint against the said accused with the allegation that the accused had borrowed from the Complainant a sum of Rs.5 lacs and towards the repayment of the same had issued a cheque No. 0666325 dated 3/12/2004 which cheque when presented for payment on 12/04/2005 was returned dishonoured on the ground that the funds were insufficient. The Complainant, therefore, served on the accused a demand notice dated 16/04/2005 which was received by the accused and since the accused failed to comply with the said notice, the Complainant filed the complaint on or about 3/05/2005 and, in support of his case examined himself and one K.K. Mohan, who was the Bank Manager of the bank, where the accused had her account. 3. The case of the accused was that she used to give the Complainant blank cheques in order to draw her salary from her bank account which were signed by her and one of such cheques the Complainant kept with him. The Complainant told her that he had given her employment and, as such, she had to pay to him Rs.4,500/- per month as commission and when she showed her unwillingness, the Complainant gave her threats and came to her house and fought with her and then sent a notice to her stating that she owed some money to him. The accused also stated that presently she was working in a Government psychiatric hospital and the accused used to demand money 3 from her and she used to issue cheques to him. The accused did not examine any witnesses. 4. The learned JMFC in acquitting the accused noted that the accused had taken several defences and assuming that the said defences were not substantiated by the accused or even if the accused had no defence, the acquittal of the accused could not be stopped as the Complainant by his own admission and conduct and other circumstances has helped the accused in rebutting the presumption and, as such, failure to file a reply to the notice was of no consequence. The learned JMFC also noted that the Complainant had admitted that he was not an income tax payee nor he had filed income tax returns and, moreover, the Complainant had not even remembered what was his monthly income for the year 2001 to 2002 and, likewise, he also did not remember as to what was his income in the year 2004 to 2005 and the Complainant also did not know what was his annual income from the year 2000 till date. The learned JMFC also took note of the fact that the Complainant had admitted that he had suffered loss of his business which was being run in the name of Star Track Enterprises and he had to close it down and had further admitted that he had borrowed a loan from Goa State Co-operative Bank Ltd. and, therefore, the learned JMFC concluded that the Complainant’s financial status was poor during the period in which the alleged cheque amounts were paid to the accused and, therefore, the 4 possibility that the Complainant had advanced sum of Rs.5 lacs to the accused was doubtful. The learned JMFC also observed that if at all the Complainant had advanced such a huge amount than the Complainant ought to have filed income tax returns but had admitted that he had not filed any such returns and this shows that the Complainant had no taxable income and if he had no taxable income then the possibility of the Complainant advancing sum of Rs.5 lacs to the accused was very doubtful and this compelling circumstance had shifted the burden on the Complainant to prove consideration of debt. 5. Contending that the accused had issued the cheque to the Complainant towards the liability she had towards the Complainant, the Complainant having lent 2 sums each of Rs.3.4 lacs and Rs.1.6 lacs, it is submitted that there was a presumption in favour of the Complainant that the cheque was issued towards the debt and learned Counsel on behalf of the Complainant has placed reliance on K.N. Beena and Anr. V/s. Muniyappan and Anr. (AIR 2001 SC 2895) in which case the Apex Court following the case of Hiten P. Dalal V/s. Bratindranath Banerjee (2001 (6) SCC 16) has observed that one cannot loose sight of Section 118 and 139 of the said Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139, the Court has to presume, unless the 5 contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability and, therefore, in complaints under Section 138, the Court had to presume that the cheque had been issued for a debt or liability, which presumption was rebutable, but, the burden of proving that the cheque was not issued for a debt or the liability was on the accused. 6. Contending that the facts of the case at hand are almost the same like those prevailing in the case of Krishna Janardhan Bhat V/s. Dattatraya G. Hegde (2008 (4) SCC 54), learned Counsel on behalf of the accused has placed reliance on the said decision. Contending that the presumptions available under Section 118 as well as 139 of the Act would be rebutted even on the basis of circumstantial evidence, Counsel on behalf of the accused, has placed reliance on Kundan Lal Rallaram V/s. Custodian, Evacuee Property, Bombay (AIR 1961 SC 1316). Reliance has also been placed on the case on Vassudev Ramchand Ahuja V/s. Vilas Shripati Kamble & Anr. (2006 ALL MR (Cri) 3203), a case where the Complainant was also unable to produce documents to show that there was enforceable debt against the accused. In this case, the amount allegedly advanced was not shown in the income tax returns nor in the books of accounts and, therefore, it was held that the trial Court was justified in upholding the defence of the accused that there was no legally enforceable debt on the date of presentation of the cheque. 6 7. The Complainant in this case did not set out the details as to when the amount was advanced by him to the accused, either in his complaint or in his affidavit in evidence. As per the Complainant, the said amount of Rs.5 lacs was advanced to the accused to enable her to purchase a flat and in cross- examination the Complainant admitted the position about his non disclosure as to when the accused had borrowed the amount from him but further stated that the said amount of Rs.5 lacs was given by him to her in various instalments, but, subsequently restricted to only 2 instalments, namely Rs.3.4 lacs, having been given in September/October, 2001 and Rs.1.6 lacs, having been given in June/July, 2004. One fails to understand as to why there was a gap of almost 3 years in advancing the said amount in case the amount was advanced to enable the accused to purchase a flat. In further cross- examination, the Complainant stated that he had withdrawn the said amount of Rs.3.4 lacs form his Bank namely Saraswat Co-operative Bank, Vasco-da- Gama and Rs.1.6 lacs from his Bank account with Goa Urban Co-operative Bank, Vasco-da-Gama. In further cross-examination, he stated that he did not remember the date and the year when he had handed over the said amount to the accused but insisted that it was handed over to the accused but no one was present at that time either from his side or from the side of the accused which amount was collected by her from his house. In further cross- examination, the Complainant admitted that he is not an income tax payee, 7 nor he had filed tax returns. He also stated that he did not remember what was his monthly income for the year 2001-2002 or 2004-05 and likewise he further stated that he could not tell what is his annual income from 2000 onwards till date. In further cross-examination, he stated that he did not know whether the accused had bought the flat or not. Here again, it may be observed, that it is strange that a person who gave money to his “rakhi” sister to buy a flat does not even know whether she in fact bought flat or not. 8. The accused through the Complainant’s said witness produced a statement of her account from which it can be seen that various payments have been made to Star Track Enterprises, the proprietary concern of the Complainant as well as to the Complainant in person. There are various withdrawals also made by self cheques. When questioned on this aspect, the Complainant in his cross-examination stated that he did not remember if at any time he had withdrawn the amount from the account of the accused from the Bank of India, Vasco-da-Gama after issuing self cheques to him. The Complainant admitted that he was carrying on the business of Star Track Enterprises. On 7/06/2006, the Complainant stated that he needed time to check his account to find out how much amount was withdrawn by Star Track Enterprises and also the amount withdrawn on self cheques issued by the accused from her account bearing no. 2479 with Bank of India, Vasco-da- Gama. But when the cross-examination was continued on 28/06/2006, the 8 Complainant gave no details whatsoever. The Complainant admitted that the handwriting on the body of the cheque was not his and further stated that although the cheque was given by the accused he could not tell who had filled in the details of the said cheque but maintained that it was fully written. The Complainant further stated that although the cheque is dated 3/12/2004, the Complainant presented it for payment on 12/04/2005 but gave no explanation for the delay. When a statement of the account of the accused was shown to the Complainant, the Complainant admitted that although the entries in the said statements were in his name he had handed over the amount to the accused, after the same was withdrawn but stated that the accused had not given any blank cheque at any time for withdrawing the amount from her bank account. The Complainant denied that the subject cheque was given duly signed by the accused to the Complainant in November, 2000 in order to draw the salary from her account. The Complainant also denied the suggestion that the Complainant had brought the cheque book bearing cheque nos. 0666301 to 0666325 after she had signed the requisition. Although the Complainant admitted the entries in the statement of accounts where money was shown paid either in his name or in the name of business, the accused stated that he had handed over the same to the accused without giving any further explanation if the accused wanted to withdraw the amount as to why the accused had withdrawn the amount in the name of the Complainant. Considering the close relationship which the 9 Complainant and the accused shared, the Complainant being the “rakhi” brother of the accused and various payments made by the accused in the name of the Complainant and/or in the name of his business to the Complainant, the plea taken by the accused in her statement under Section 313 of the Code does appear to be probable and once it is held that the accused had discharged the presumption available to the Complainant in terms of Section 118 as well as Section 139 of the Act, it was then for the accused to prove the debt or any other liability i.e. that the Complainant had lent money to the accused. In this context reference could be made to the case of Kundan Lal Rallaram V/s. Custodian, Evacuee Property, Bombay (Supra) wherein the Apex Court has stated that; “The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, Section 118 of Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstance so relied upon are compelling, the burden may likewise shift again to the plaintiff.” Similar is the view held by the Apex Court in Bharat Barrel and Drum Manufacturing Company V/s. Amin Chand Payrelal (AIR 1999 SC 1008), wherein the Apex Court has held that; “If the defendant is proved to have discharged the initial 10 onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to grant of relief on the basis of negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well.” 9. This is the case wherein the circumstances brought about from the cross-examination of the Complainant were more than sufficient to displace the presumption available to the Complainant in terms of Section 118 and 139 of the Act and, once that was done by the accused, it was entirely for the Complainant to have proved that the subject cheque was issued towards discharge of the debt owed by the accused to the Complainant. In the case at hand, the allegation of the Complainant that he had advanced Rs.5 lacs to the accused is nothing short of being termed as 'a cock and bull' story which has been dealt in detail by the learned trial Court, inter alia, observing that the Complainant himself had taken a loan for his business as it had gone into a loss. He had filed no income tax returns and, as such, was not a person of means, who could have advanced a sum of Rs.5 lacs to the accused. Adverse inference also ought to have been drawn against the Complainant for non- production of the statement of accounts of his two banks, which he claimed he had, from which the complainant claimed he had withdrawn the amount to 11 be paid to the accused. 10. In the light of the above, I find there is no merit in this appeal, and, therefore, the same is hereby dismissed with costs, which are fixed at Rs.5,000/- to be paid by the Complainant to the accused within a period of 15 days. N.A. BRITTO, J. NH/-