1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NOS. 50, 51, 52, 53, 54, 55 AND 56 OF 2007 Caroma Agencies Pvt. Ltd., having place of business Office at Tilak Complex, Vasco-da-Gama, Goa, represented by the Managing Director Carmelino Machado, s/o Froilano Machado, major in age, businessman, r/o Bogmalo, Vasco-da-Gama, Goa. ... Appellant versus 1. Speedline Cargo Movers a Proprietorship firm of Accused No.2. 2. Jones George, major in age, both having place for service of summons at 176/1/54 M.E.S. College Road, Bharat Nagar, Zuari, Goa. ... Respondents Shri N. Sardessai, Advocate for the Appellant. Shri D. Pangam, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 25TH FEBRUARY, 2009. 2 ORAL JUDGMENT These are Complainant's appeals and are filed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881(Act, for short) by Judgments/Orders dated 8-2-2007 of the learned J.M.F.C., Vasco-da- Gama. 2. The Complainant is a Private Limited Company. There is only one accused in this case i.e. accused No.2 who is the Proprietor of the business run by him in the name and style of accused No.1. As all these appeals involve common facts, by consent of the learned Counsel appearing on behalf of the parties, they are being disposed off by this common Judgment. 3. The dispute between the parties arises out of dishonour of seven cheques which were admittedly dishonoured on specific instructions given by the accused to his Bankers. The details of the said cheques and other details could be tabulated as follows:- Cheque No. Date Criminal Case No. Criminal Appeal No. 61025 16-03-2005 1092/05 54/07 61026 16-04-2005 1094/05 55/07 61027 16-09-2005 1093/05 51/07 61028 16-06-2005 1095/05 50/07 61029 16-07-2005 1084/05 53/07 61024 16-02-2005 1085/05 52/07 3 Cheque No. Date Criminal Case No. Criminal Appeal No. 61023 16-01-2005 1096/05 56/07 4. The case of the Complainant is that the Complainant had given to the accused truck bearing No.KA-30-B-7700 on hire basis on payment of Rs.50,000/- per month per truck computed at the rate of Rs.1666.66 per day and three other trucks at the rate of Rs.70,000/- per month per truck to be computed at the rate of 2333.33 per day. As per the Complainant the said trucks were given for a period of 83 days and the accused was also required to pay insurance and other miscellaneous expenses. As per the Complainant the accused owed to the Complainant a sum of Rs.4,86,412/- and towards the payment of the same the accused issued seven cheques of Rs.50,000/- each amounting to Rs.3,50,000/-. The case of the Complainant is that time and again the accused was irregular in making payments to the Complainant and several attempts were made to persuade the accused to make regular payments, and, time and again, the accused issued cheques which were dishonoured. Often the accused stalled the Complainant by asking the Complainant not to deposit the cheques handed over to them. The Complainant stated that being fed up, with the delaying tactics of the accused, the Complainant tried to encash some of the cheques given by the accused but the cheques were dishonoured by the Bankers with a remark “that the payment was stopped by the drawer”. The Complainant sent legal notices dated 27-7-2005 to the accused. The accused replied to the notices. The accused thereafter filed the complaints, inspite of the reply given by the accused, and, in support of the 4 complaint, the Complainant examined its Managing Director and his Accountant and later with the permission of the Court filed additional affidavit along with the audited statement of account. 5. The accused was examined under Section 313 of the Code of Criminal Procedure(Code, for short) but led no evidence in support of his case inasmuch as the explanation given by the accused in the statement recorded under the said Code is far from satisfactory. However, the reply filed by the accused could be considered as his defence and as per the said reply it was the case of the accused that truck bearing No.KA-30-B-7700 was handed over to him on hire charges of Rs.50,000/- per month to be paid over a period of 37 months on monthly intervals and towards the payment of the hire purchase instalments the accused had handed over to the Complainant 37 cheques of Rs.50,000/- bearing Nos.61016, 61018 to 61020 and 60214 and 60215, all drawn on Centurion Bank, Vasco-da-Gama, and, in addition the accused had paid to the Complainant a sum of Rs.1,50,407/- on 16-6-2004 as security deposit. The accused also stated that the hire purchase agreement which had commenced on or about 16-6-2004 was terminated by mutual consent. The accused denied that the truck No. KA-30-B- 7700 was taken on contract basis for a consideration of Rs.50,000/- per month. The accused admitted having taken on hire three trucks from the Complainant at the rate of Rs.70,000/- per month per truck but stated that it was without specifying any period, and, all the three trucks were returned by the accused to the Complainant about two months and thereafter the said trucks were gainfully 5 employed by the Complainant elsewhere. The accused also stated that the Complainant was paid an amount of Rs.4,60,000/- between 16-6-2004 and 7-3-2005, for all the said four trucks in full and final settlement of all claims. The accused, therefore, denied that he owed to the Complainant an amount of Rs.4,86,412/- as was alleged by the Complainant in the notice. The accused further stated that the seven cheques were from among 37 cheques which the accused had given to the Complainant towards hire purchase instalments of truck No.KA-30-B-7700 which cheques the Complainant was required to return to the accused, in view of cancellation of hire purchase agreement and the accused having requested the Complainant to return the said cheques and the Complainant having promised to do so never returned them with a mala fide intention which was then apparent with a view to misuse the same against the accused to extract more money from the accused and for that reason the accused was compelled to instruct his Bankers, namely Centurion Bank, Vasco-da-Gama, to stop payment of the said cheques, least the Complainant was able to misuse them. On behalf of the accused, it was also stated that when each of the said cheques were presented by the Complainant for payment, the accused had sufficient funds in his account, on which the said cheques were drawn and if at all the Bankers of the accused returned each of the said cheques it was because the payment was stopped by the accused. It was also the case of the accused that the accused justly and properly stopped the payment on each of the said cheques to prevent the Complainant from misusing the same. 6 6. The Complainant had examined its Managing Director and its Accountant to support its case and later with the leave of the Court filed an affidavit along with an audited statement of account, after stating that the earlier statement of account produced through his accountant had contained several omissions which were inadvertently made by his accountant. However, the Complainant did not examine the auditors who had prepared the said audited statement, though he signed the same as a Director of the Complainant. 7. The learned trial Court concluded that the dishonour of cheques was not because of insufficiency of funds but it was because the payment was stopped by the drawer. The learned trial Court also prepared a chart as regards the dues which would be payable by the accused to the Complainant on account of the hire of the said trucks. The said chart can be seen at internal page 8 of the Judgment in Criminal Case No.1095/OA/NIA/05/A, and, further held that what the Complainant would be entitled was a sum of Rs.53,924.95 and not the amount as claimed by the Complainant, as due on the seven cheques issued by the accused to the Complainant. The learned trial Court also noted that the ledger account was manipulated since the hire charges were debited for 191 days as against 83 days, as pleaded by the Complainant himself and further had held that the Complainant had also not examined the Chartered Accountant, namely Elson Sequeira who had prepared the statement of account at Exh.78 nor produced the debit note or income tax returns in support of the said statement of account. The learned trial Court further noted that the said document, namely, the audited statement of account 7 was unilateral and was of doubtful nature. The learned trial Court also held that once the accused takes the defence which is probable, the Complainant was required to prove its case which the Complainant failed to do, and, in coming to that conclusion the learned trial Court referred to the case of M. S. Narayana Menon @ Mani v. State of Kerala and another(2006 AIR(Criminal) 507). Ultimately the learned trial Court came to the conclusion that the Complainant had failed to prove that the subject cheques were issued towards the payment of any debt or liability or that any amount was paid by the accused and proceeded to dismiss the complaints and acquit the accused under Section 138 of the Act. 8. The case of the Complainant as set out in the complaint as well as in the affidavit in evidence is that as against the four trucks the accused owed to the Complainant a sum of Rs.4,86,412/- and thus the accused had issued seven cheques of Rs.50,000/- each, amounting to Rs.3,50,000/-. It appears from the evidence of the Branch Manager, Centurion Bank, that four of the cheques of Rs.50,000/- were dishonoured on 22-7-2005 and three others on 14-7-2005, 20-7-2005 and 27-7-2005, respectively, and as stated by him all the said cheques were dishonoured because the payment was stopped by the drawer. 9. There is no dispute that the cheques were issued by the accused to the Complainant but according to the Complainant they were issued towards a liability of Rs.4,86,412/- but according to the accused they are from the 37 cheques which were issued in advance towards the payment of hire purchase 8 instalments. There is no doubt that in terms of Section 118 as well as Section 139 of the Act there is a presumption which favours the Complainant that the cheques were issued in discharge of a debt or liability. An expression like “it shall be presumed unless the contrary is proved” appearing in Section 139 of the Act came for consideration before the Apex Court in the case of State of Madras v. A. Vaidyanatha Iyer(AIR 1958 SC 61) and the view held therein has been subsequently followed in Hiten P. Dalal v. Bratindranath Banerjee((2001) 6 SCC 16) which is a three Judge Bench decision of the Apex Court. However, the presumption is rebuttable and such a presumption can be rebutted by the accused by giving his own evidence or taking the benefit of the very evidence of the Complainant. In fact, the Apex Court in Hiten P. Dalal v. Bratindranath Banerjee(supra) has held that the drawing of the presumption is mandatory and no discretion is left with the Court but that does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A rebuttal is not conclusively to be established but such an evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability, being of a prudent man. The question before this Court is whether the presumption available to the Complainant was sufficiently rebutted by the accused and the answer to it has got to be in the affirmative. 10. As already stated, the Complainant examined its Managing Director and initially its accountant, and, thereafter the Complainant gave up the expertise 9 of his accountancy and on his own produced an audited statement of account, without examining the Auditors who had prepared the same. The cross- examination of the Managing Director reveals that the Complainant's Managing Director was not much acquainted with the facts of the case. In his affidavit in evidence, the said Managing Director Shri Carmelino Machado/PW1 stated that the trucks were given to the accused for a period of 83 days but in cross- examination he stated that the hire duration of truck No. KA-30-B-7700 was 37 months and in respect of the other three trucks no duration was fixed as they were given for specific jobs, after resiling from his earlier statement that the three trucks were given for a period of 83 days. He stated that he did not remember the transaction in respect of the trucks as to when it came to an end and further stated that he was claiming hire charges for 83 days of the three trucks. He conceded that there was no agreement in writing in respect of all the four trucks and there was also no correspondence of the hire contracts. He admitted that they had taken an advance of Rs.1.25 lakhs on 16-6-2004 for truck No.KA-30-B-7700 and thereafter had received another payment of Rs.25,000/- for reimbursement of taxes and insurance, paid on behalf of the accused, and stated that they had received in all, an amount of Rs.4,60,000/- towards hire charges of all the four trucks. However, in further cross-examination he admitted that the sum of Rs.1,50,407/- paid on 16-6-2004 was paid as an advance. He denied that 37 cheques were given by way of advance payment and further stated that in respect of three trucks the accused had given them three cheques of Rs.70,000/- each for one month and for subsequent periods the accused did not give any cheques of Rs.70,000/- each and 10 instead gave a smaller amount to cover up the payment for the full month. In further cross-examination he stated that he could produce the documents to show that the accused had returned the three trucks after 83 days but produced none but later admitted that there were no documents to show the transaction as to when the contract started and when it concluded further admitting that there were no records to show the transaction. Although he stated that they had some notings to show that the trucks were given to the accused and when the trucks were returned the Complainant did not produce any such notings. In further cross-examination he stated that he did not know the date on which the hire of truck No. KA-30-B-7700 came to an end but again stated that it commenced on 16-6-2004 and concluded on 15-1-2005 in respect of the said truck. He denied the suggestion that the contract of the truck No.KA-30-B-7700 was over within 40 days time from 16-6-2004. He further stated that he did not remember as to how many cheques of Rs.50,000/- were encashed by the Complainant and further stated that the statement in the complaint at para 2 that the trucks were given to the accused for a period of 83 days refers to only three trucks other than truck No.KA-30-B-7700 and the said 83 days he computed from the date the accused took the trucks till the date the accused gave back the truck but further stated that he did not have the date of commencement of the hire and the date when the trucks were returned. He denied the suggestion that the said trucks were not on hire with the accused for 83 days but denied the suggestion that all the three trucks were returned by the accused to the Complainant in less than two months. He also stated that the sum of Rs.1,50,407/- paid on 16-6-2004 was given as security deposit but later confirmed 11 that it was an advance. In further cross-examination he stated that the accused came in January, 2005 to negotiate and bring the rate down and it was agreed that it should be 83 days for three trucks and the fourth truck the period ended on 15-1-2005 and against which the accused gave the subject cheques. Here it may be noted that such an agreement was not pleaded by the Complainant either in his complaint or in his affidavit in evidence and was stated for the first time in cross- examination. Ultimately, on behalf of the Complainant, it was admitted that what was agreed was that the payment to be made by the accused was for 83 days for three trucks and seven months for the fourth truck. As already stated, the Complainant's version, as projected by its Managing Director cannot be accepted. If we go by the said admission, of the Complainant, the payment to be made by the accused to the Complainant works out to Rs.3,50,000/- in respect of the fourth truck, and Rs.5,80,999.17 in respect of three trucks and which in turn works out to Rs.9,30,999.17 which amount is not reflected either in the statement of accounts earlier produced by the accountant nor on the audited statement of accounts produced on behalf of the Complainant. 11. Learned Counsel Shri N. Sardessai appearing on behalf of the Complainant, referring to the audited statement of account has submitted that the amount of Rs.6,65,407/- is not the amount received by the Complainant, as per his instructions. Learned Counsel further submits that on a proper reading of the said audited statement of account, the amount which has been received by the Complainant works out to Rs.4,75,407/-. However, it may be stated that that is not 12 the amount i.e. Rs.4,75,407/- which has been accepted on behalf of the Complainant as the amount actually received by the Complainant. On the contrary, the Complainant's witness has stated that the Complainant received only a sum of Rs.4.60 lakhs and not a sum of Rs.4,75,407/- as now sought to be consented on behalf of the Complainant. The Complainant's witness did not vouch for the said audited statement of account, though signed by him, that it showed that the actual amount received by the Complainant was Rs.4,75,407/-. The Complainant also did not examine the person who had prepared the said statement, namely the Chartered Accountant, and, in the light of that the Complainant's submission now made that the Complainant had received a sum of Rs.4,75,407/- cannot be accepted. Learned Counsel on behalf of the Complainant has placed reliance on Ramji Dayawala and Sons(P) Ltd. v. Invest Import((1981) 1 SCC 80) wherein it is stated that contents of a document have to be proved by admissible evidence but not necessarily by the author of the document. Since the submission now made that the Complainant had received Rs.4,75,407/- is a submission which was not vouched for by the Complainant's witness nor was made good by the Complainant by examining the author of the said audited statement, the submission made cannot be accepted. The said audited statement cannot be read, as sought to be read out, on behalf of the accused, namely, that an amount of Rs.11,51,819/- was due and payable by the accused of which an amount of Rs.6,65,407/- was paid leaving a balance of Rs.4.86.4112, but I must hasten to add that this is contrary to the evidence given by the Complainant's witness who has stated that he received a sum of Rs.4.60 13 which is not reflected at all on the said statement of account and what is reflected therein is that a sum of Rs.6.65,407.00 was received by the Complainant. Complainant's witness in terms has admitted in affidavit dated 29-9-2006 that the Complainant has received Rs.6,65,407/- from the accused. As per the admission of the Complainant the dues payable by the accused works out to Rs.3,50,000/- on one truck and Rs.5,80,999.17 on three trucks, and in all Rs.9,30,999.17. If the audited statement of the Complainant coupled with the affidavit that a sum of Rs.6,65,407/- was received by the Complainant is accepted, and, there is no reason why the same should not be accepted the amount payable to the Complainant works out to Rs.2,65,999/- which falsifies the case of the Complainant that the subject cheques were issued towards a liability of Rs.4,86,412/- which was settled at Rs.3,50,000/-. The Complainant also did not explain why the accused had given seven cheques of different dates. This fact had to be seen in the background of the fact that otherwise there was sufficient amount into the account of the accused. In the light of that, this is a case where the accused had not only rebutted the presumption but the Complainant had failed to prove that the accused had a liability to be discharged in the sum of Rs.3,50,000/-. 12. The acquittal of the accused therefore cannot be faulted. There is no substance in these appeals and consequently the same are hereby dismissed with costs, in all the cases, which is fixed at Rs.5000/-. N. A. BRITTO, J. RD 14