1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 75 OF 2006 Shri Jagdish G. Naik, major, businessman, having his address at A/4, Ramakant Apts., Opp. Pharmacy College, Panaji, Goa. .... Appellant V/s 1. Shri Chandrahas Amin, Major, having his address at House No. 27, Fermina Apts., Miramar, Panaji, Goa. 2. S T A T E. .... Respondents Mr. A.R. Kantak, Advocate for the Appellant. Mr. G. Agni, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 22 nd APRIL, 2009 ORAL JUDGMENT: This is a complainant’s appeal and is directed against the acquittal of the accused, under Section 138 of the Negotiable Instruments Act, 1881, by judgment dated 5/05/2006. 2. Documents produced by the complainant show that by application dated 21/04/1998 Hotel Goa International had sought permission of the Municipal Council for erecting a temporary structure for a function to be held on 28/04/1998 and later was a subject matter of show cause notice for demolition dated 6/12/1999 issued by that Council. This structure was also 2 the subject matter of a memorandum of understanding between the complainant and the accused dated 12/06/2002. By the said memorandum of understanding the complainant handed over to the accused the restaurant premises with constructed dining shed and kitchen premises along with attached list of articles, more particularly, described in the attached sheet which included 3 deep freezes, 4 pedestal fans, grinders, etc. The said understanding recorded that the concern was handed over against 5 cheques bearing nos. 086576 to 086580, each for a sum of Rs.1 lac. The first two cheques were dated but the next 3 cheques were undated. The first cheque was honoured. The second cheque was taken back and the amount due thereon was paid in 3 instalments. The premises came to be demolished in the first week of November, 2002, as the owners of the Hotel Goa International, where they were situated, closed down the business run by the accused and evicted him therefrom. 3. The accused then sent a letter dated 7/02/2003 to the complainant referring to the M.O.U. dated 12/06/2002 by which the accused was authorized to run the restaurant in Hotel Goa International situated at Tonca, Miramar, Goa. The accused stated that in terms of the said understanding, the complainant had handed over certain utensils, gadgets and equipments along with understanding that he would obtain necessary consent from the owners of the Hotel and the complainant would be operating the restaurant 3 for a period of at least 5 years. The accused stated that the accused was supposed to pay Rs. 1 lac per year in terms of the above cheques. A part of the consideration amount was to be paid by the complainant to the hotel owners and balance was to be retained by him as commission and as the complainant had failed to obtain the consent of hotel owners and, as a result, the accused had to close down the activities of the hotel in just 4 months. The accused stated that as the contract failed on account of the complainant's liability to convince the hotel owners, the accused was entitled for a refund of Rs. 2 lacs received by the complainant as well as the return of the blank cheques in the complainant’s custody. The accused acknowledged that the accused was required to return all the utensils, equipments and gadgets collected by him and as such called upon the complainant to return the said amount of Rs. 2 lacs and the blank cheques within 15 days of receipt of the letter. 4. This letter of the accused dated 7/02/2003 was replied to by the complainant by his reply dated 21/02/2003. In this reply, the complainant acknowledged that as per the understanding, the complainant had authorized the accused to run the restaurant at Hotel Goa International. There were several other contentions raised by the complainant but the fact remains that the complainant also informed the accused that he would be dating the cheques as 1/03/2003, 15/03/2003 and 31/03/2003 and presenting them for 4 payment and further required the accused to make arrangements to honour the said cheques. 5. When the cheques were presented for payment all the said 3 cheques were returned dishonoured with a remark that the 'funds were insufficient' though by then the accused had already given instructions to stop the payment. 6. The complainant examined himself in support of the case. It appears that the complaint was filed against the brother of the accused as well, but, he was subsequently deleted. The accused also examined in support of his defence. 7. The learned JMFC accepted the version of the accused as being reasonable, probable and, therefore, proceeded to acquit the accused as aforesaid. 8. Although the complainant stated in his evidence that the said premises were owned by the complainant, he was unable to produce any document in support of his ownership, and all the documents produced by him supported the case that the said premises were erected by the said Hotel Goa International in their own compound. The complainant in fact had stated that 5 the said structure was constructed by him pursuant to his application dated 21/04/1998 but conceded that the said letter was issued in the name of said Hotel Goa International. Likewise, the complainant also conceded that all the documents produced by him were in the name of Hotel Goa International and the said hotel did not belong to him. The complainant also admitted that the dates on the 3 subject cheques were put by him in terms of letter dated 21/02/2003 and although the complainant stated that he did not know whether the accused was evicted, the statement as regards the eviction of the accused in November, 2002 has gone uncontested, the same having not been denied by the complainant. The complainant had also admitted that he did not have any licence to run the restaurant and that he was running the same for the owners i.e. Hotel Goa International and that he also did not have any written permission from the owners of Hotel Goa International to sell or transfer the restaurant premises to the accused. 9. On the other hand, the accused in his evidence stated that the complainant had informed him that he was unable to run the restaurant and had sought for his help and had represented to him that Hotel Goa International by agreement had permitted the complainant to run the restaurant within the premises of Hotel Goa International. The accused stated that the said restaurant was handed over to him for the purpose of running the same for the period of 5 years for a total consideration of Rs. 5 lacs at the rate 6 of Rs.1 lac per annum and that the complainant had also entered into necessary agreement with the owners of Hotel Goa International under which he was running the restaurant. The accused had stated that a part of consideration of Rs. 1 lac per annum would be paid by the complainant to the owners of Hotel Goa International and the balance was to be retained by the complainant and that as per the said representation the said MOU dated 12/06/2002 was entered into between the complainant and Shri Sadashiv Amin, the brother of the accused as the restaurant business was initially intended to be run in the name of his brother, but, the said MOU was accepted by the accused and he decided to run the business himself. The accused also stated that at the time of signing of the MOU, the complainant had represented to him that the terms and conditions as agreed were incorporated in the said MOU. It is his case that he cannot read or write in English as he studied up to 6th standard in Kannada. The accused also stated that pursuant to the said MOU dated 12/06/2006, he took over the running of the restaurant along with other items which were valued approximately at Rs. 60,000/- w.e.f. 13/06/2002 and was successfully doing the business of preparing and selling fast food items. The accused further stated that the owners of Hotel Goa International informed him that the complainant was not the owner of the restaurant handed over to him and the same belonged to Hotel Goa International and that he had no authority to run the said restaurant and on the same ground closed his business and evicted him from the 7 premises. 10. Shri Kantak, the learned Counsel appearing on behalf of the complainant has submitted that the entire business of the restaurant along with the items mentioned in the annexure to the MOU were handed over to the accused against 5 cheques issued by the accused and that the said cheques were issued towards the liability set out in the said MOU. Learned Counsel further submits that if another agreement was to be entered into as contended by the accused, the accused would not have waited till he was evicted from the suit premises by the owners of the said Hotel Goa International. Learned Counsel further points out that it is not the case of the accused that the items received by them along with the said MOU are required to be returned by them. Learned Counsel further submits that the case of the accused that the premises were given to the accused to be run for 5 years or that they had to be returned at the expiry of 5 years is not a case which can be culled out from the said MOU and therefore cannot be accepted. Likewise, learned Counsel further points out that the contentions of the accused that out of Rs.1 lac certain amount was required to be paid by the complainant to the owners of the said Hotel Goa International by retaining some commission also cannot be accepted. Learned Counsel further points out that the memorandum expressly records that the liability of the complainant was only till 12/06/2002 i.e. the date of the signing of the MOU. Learned Counsel further 8 submits that once the cheques were duly signed by the accused and issued in favour of the complainant the presumption under Section 139 of the Act would follow that they were given in the discharge of the liability of the accused. He further submits that in case the premises were given to be run for 5 years with Rs.1 lac to be paid per year, the accused would hot have paid initially the sum of Rs. 2 lacs. 11. On the other hand, Shri Agni, the learned Counsel on behalf of the accused, submits that the case of the complainant would either be that the said premises were sold to the accused or were given for the purpose of running and as contended by the accused, for the period of 5 years. Learned Counsel further submits that in case it is the case of the complainant that the premises were sold, the same could not have been sold because the complainant was not the rightful owner of the same and that being the case, the consideration ought to fail for want of title. 12. As can be seen from the complainant's reply dated 21/02/2003, it is the complainant's case that in terms of the MOU dated 12/06/2002, the complainant had authorised the accused and his brother to run the restaurant at Hotel Goa International. It is not the case of the complainant either in the MOU signed between the parties or for that matter in reply dated 21/02/2003 that the premises along with the equipment existing therein, as mentioned on 9 the annexure to the MOU, were sold to the accused against the payment by the said 5 cheques. Obviously, that could not be done because the premises did not belong to the complainant. If the case of the complainant is that he had authorised the accused to run the restaurant, the case of the accused that he was authorised to run the restaurant for a period of 5 years, appears to be far more plausible and probable. There is no convincing explanation on the part of the complainant as to why 2 cheques were dated and the other 3 were undated and it is reasonable to infer that the undated cheques were in respect of future consideration which was payable on account of the running of the restaurant by the accused and if the accused was stopped from running the said restaurant from November, 2002 it is but obvious that the accused had no liability to pay the amount due on the said cheques to the complainant. It is true that the accused paid 2 instalments within a period of one year and it is the case of the accused that the first cheque was allowed to be encashed because complainant had represented that he was in financial difficulty and therefore was in urgent need of money and similarly for the same reason had asked the accused to pay in cash in lieu of second cheque. It is also quite probable that the complainant was paid two instalments for 2 years in advance, but, certainly the accused was not liable to pay further instalments as the accused was evicted from the premises given to him by the complainant and which otherwise did not belong to the complainant but to the said Hotel Goa International. The accused thus had rebutted the 10 presumption available to the complainant but proved that there was no consideration in respect of the last 3 cheques which were undated because he was unable to use the business premises which he was authorised to use by the complainant and, viewed thus in my view, the acquittal of the accused cannot be faulted. 13. The accused in his letter dated 7/02/2003, has admitted his liability to return all the utensils, equipments and gadgets and the complainant was free to collect the same from the accused. Considering the facts of the case, it must be stated that the complainant completed the cheques by putting the date without the authority of the accused. It is not the case of the complainant that the cheques were given towards the payment for the equipment in the premises. The stand taken by the accused is consistent with letter dated 7/02/2003 in which the accused had even called upon the complainant to take custody of the utensils. 14. There is no merit in this appeal and, consequently, the same is hereby dismissed. The bail bonds, if any, shall stand discharged. Costs by complainant. N.A. BRITTO, J. NH/-