1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 81 OF 2010 Shri Brahmanand T. Mamlekar, Major, Married, R/o Upper Bazar, Ponda, Goa. ... Appellant versus 1. Shri Eknath Ashok Tari Volvoikar, Major, R/o Upper Bazar, Ponda, Goa. 2. State of Goa, Through the Public Prosecutor High Court, Panaji-Goa. ... Respondents Shri P. Arolkar, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for Respondent No.2 Shri A. Monteiro, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 23RD DECEMBER, 2010. ORAL JUDGMENT This is a complainant's appeal and is directed against Judgment dated 7-5-2010 of the learned J.M.F.C., Ponda by which the accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881. 2 2. The parties hereto are being referred to in the names as they appear in the cause title of the complaint. 3. The case of the complainant is that the complainant had advanced a sum of Rs.2,67,000/- on 6-12-2003 duly receipted and the accused towards repayment of the same had issued a cheque No.0145871 dated 8-3-2004 for the said sum of Rs.2,67,000/- which he presented for payment to his bankers Bicholim Urban Co-operative Bank Ltd., Ponda on the same day but was returned on the same day by the bankers of the accused, namely, Vijaya Bank, Ponda with endorsement that it exceeded arrangement. The case of the complainant is that on receipt of the said letter dated 8-3-2004 from his bankers, the complainant addressed a notice through his advocate to the accused dated 15-3-2004 calling upon the accused to pay the said amount of Rs.2,67,000/- within 15 days which the accused received, and it is an admitted position that the accused replied the notice, by reply dated 30-3-2004, and as the accused failed to comply with the said notice, the complaint was filed. 4. In the reply of the accused dated 30-3-2004 a copy of which was produced with consent of parties, the accused had stated that he had 3 lodged a complaint dated 6-3-2004 against the complainant as the complainant and his brother-in-law with four of his accomplices made illegal entry into his residence and manhandled his already injured brother Mr. Naresh Tari and damaged their furniture, etc. and forcibly entered all the rooms of their house and stole away blank signed cheque books of Vijaya Bank and Goa State Co-operative Bank. The accused denied having issued any cheque in favour of the complainant and reiterated that the complainant had criminally trespassed into his house, etc. The accused stated that he had not committed any act so as to warrant any action against him by the complainant for recovery of the said amount in terms of Section 138 of the Negotiable Instruments Act, 1881. The complainant was called upon to withdraw the notice dated 15-3-2004. 5. The complainant examined himself and produced the necessary documents. The complainant was cross-examined at length. The complainant produced the subject cheque as well as the said receipt. In support of his defence the accused examined the brother-in-law of the complainant Uday Kavlekar, complainant's wife Shanta Mamlekar, Gajanan Umarayee, Manager of Goa State Co-operative Bank Ltd., 4 Chandrakant Gawas, SHO on duty at Ponda Police Station on 6-3-2004, Shri Manjunath Dessai who was P.I. of Ponda Police Station and Ramesh Gaonkar also P.I. of Ponda Police Station. 6. The accused chose not to examine himself or for that matter his brother Naresh Tari in support of his defence. Obviously, DW1/Kavlekar, the brother-in-law of the complainant, was not even cross-examined, on behalf of the complainant. He had stated that he had agreed to purchase a shop from the accused and then decided not to purchase it, and then telephoned the complainant and asked him to collect the purchase price of the shop from the accused and on 30-4-2005 the complainant telephoned him and informed him that the accused had given on 29-4-2005 a cheque of Rs.3,00,000/-. So also complainant's wife DW2/Shanta Mamlekar was not cross-examined who otherwise had stated that her brother, the said Uday Kavlekar had purchased a shop from the accused. Shri Umarayee, the Bank Manager stated that Account No.244 was of Ashok Volvoikar Tari, the father of the accused, who had issued six cheques in favour of the complainant amounting to Rs.4,62,000/- and who admitted that the said six cheques were bearer cheques which could be written by the drawer in the name of any person 5 and he can withdraw the money himself. He had stated that he did not know whether the signature on the reverse was that of the account holder or not. DW4/Head Constable Gawas conceded that he had not carried out any investigations into the complaint filed by the accused on 6-3-2004. DW5/P.I. Manjunath Dessai stated that he had never handled the investigations in the complaint dated 6-3-2004 and DW6/P.I. Gaonkar admitted that the SDPO had advised the parties to approach the Civil Court as the matter was purely of civil nature and that on the basis of the complaints filed by the accused dated 6-3-2004-Exh.69/C and 28-3-2004-Exh.49/C no FIR was registered by the Police. He had also admitted that no cheque book numbers nor the cheque numbers were mentioned in the complaint lodged by the accused Eknath Volvoikar. 7. What follows therefrom i.e. from the evidence of the witnesses examined by the defence is that the Police took no action into the complaint of the accused particularly the complaint dated 6-3-2004. DW6/Gaonkar has also confirmed that he was aware about the dispute over the shop between the complainant and the accused and that no investigations were carried out in any of the complaints of both the parties because their informants had already informed them that there 6 was a dispute of a shop between the parties and that the SDPO Shri Deu Banaulikar had advised the parties to approach the Civil Court and the parties had agreed to the same. In other words, it is obvious that the Police authorities found that the complaint of the accused dated 8-3-2004 was not at all genuine. The accused had failed to prove even by preponderance of probabilities that there was any such incident as narrated by him in his complaint or reply to the notice. The best evidence to support the alleged incident of 6-3-2004 would have been of the mother and brother of the accused who have not been examined. Adverse inference need to be drawn against the accused from their non examination. 8. The complainant after confirming the facts pleaded by him in his complaint, had stated in his evidence that the accused was his neighbour and as such he knew him for several years. The complainant had stated that the receipt Exh.8 was given to him at his residence on 16-12-2003 in the morning hours, duly completed. The complainant had stated that the handwriting of the receipt was that of the accused and that he was familiar and can recognize the handwriting of the accused. When asked about the payment of 2,67,000/-, the complainant had stated that it 7 was paid at his residence and that he had that amount, as he is a businessman. He had stated that he had a licence for a mill and textile business. He had stated that he did not have any cheque of the accused in his possession. This statement was made by the complainant on 28-2-2005 and had further stated that the said loan was given to the accused to put a slab to his house. The complainant had denied the suggestion that he had taken blank signed cheques of the accused and the subject cheque was one of the signed blank cheques. The complainant had stated that there was only one transaction between him and the accused regarding the shop and prior to that there was another transaction when the accused took money from him. The complainant had denied the suggestion that the accused had not handed over to him the receipt duly completed. The complainant had admitted that there were two more cheques given by the accused but they were towards the refund of the amount of Rs.5,40,000/- with interest at 16% to his brother- in-law, the said Uday Kavlekar which amount was to be refunded to the said Kavlekar and not to him. The complainant had further stated that he had not advanced any money to the father of the accused by name Ashok R. Tari nor had he obtained any money from him and that on 6-3-2004 there was a fight between the said Ashok Tari and himself for which he 8 had filed a complaint-Exh.25. Complainant had categorically stated that the six cheques-Exh.38/C were not handed over to him, though they were written in his name, and the signatures on the reverse were not his but were forged. 9. From further cross-examination of the complainant, it transpires that the complainant had filed three complaints, the details of which are as follows:- Cheque No. Date Amount C. C. No. Date of filing the complaint 0145869 29/04/2005 Rs.3,00,000/- 1006/2008 01/07/2005 0145870 01/10/2005 Rs.4,00,000/- 566/2006 02/09/2005 0145871 08/03/2004 Rs.2,67,000/- 180/2004/A 12/04/2004 10. According to the accused, he had filed three criminal complaints in respect of bouncing of cheques against the accused and the present case was the first case filed by him. The second case was filed before Panaji Court for a cheque of Rs.3,00,000/- which ended in acquittal by the Panaji Court by Judgment dated 3-2-2010, and the third case for a cheque of Rs.4,00,000/- has been returned by the Panaji Court but the complainant has not filed the same in Ponda Court. The 9 complainant had categorically stated that the present case was his personal case and the other two cases were filed by him on behalf of his brother-in-law Uday Kavlekar which pertained to the amount due to his brother-in-law and not to himself as his brother-in-law was abroad. Here, it may be noted that there was no receipt given in the other two cases pertaining to his brother-in-law. 11. Shri P. Arolkar, learned Counsel on behalf of the complainant, submits that the accused has not denied the execution of the cheque and the receipt. He further submits that the Police did not register his complaint because he had filed a false case. Learned Counsel submits that it is difficult to believe that the accused had kept so many cheques signed in blank and further submits that the accused ought to have examined his brother and mother in support of the case put forward by him. Learned Counsel also submits that the accused did not produce any letter having been issued to the Bank to stop payment, which would further falsify the case of theft set up by the accused. 12. On the other hand, Shri A. Monteiro, learned Counsel on behalf of the accused, submits that it was necessary for the accused to 10 have stepped in the witness box to prove the defence taken by him. Pointing out to the serial numbers of the cheque, learned Counsel submits that in this case the subject cheque having the last serial number was presented first and this would probabilize the defence of the accused that all the cheques were taken by the complainant, kept by him signed in blank. Learned Counsel further submits that the complainant made a false statement on 28-2-2005 that he had no other cheques in his possession when in fact, the other two cheques were also with the complainant. To that, Shri Arolkar submits that the other two cheques were dated 1-10-2005 and 29-4-2005, and as such could not have been in possession of the complainant, and, therefore the said statement cannot be considered as a false statement. Shri Monteiro again submits that in case the relations between the complainant and the accused were strained from 6-3-2004 the accused could not have given the said other two cheques to the complainant. However, learned Counsel for the accused does not dispute that the agreement dated 22-10-2002 for purchase of the shop was between the father of the accused and the brother-in-law of the complainant. Learned Counsel also points out that the complainant has not proved that the complainant had actually advanced the sum of Rs.2.67 lakhs to the accused. 11 13. Shri Monteiro submits that since the case regarding the cheque of Rs.3,00,000/- has ended in acquittal on 3-2-2010 by the Order of the learned J.M.F.C., Ponda, and the other case in respect of the cheque of Rs.4,00,000/- was not filed by the complainant, after it was directed to be returned, the present case also should meet the fate of the said case decided by the learned J.M.F.C. on 3-2-2010, and in this context, learned Counsel has placed reliance on a Judgment of this Court dated 24-10-2008 in the case of Shri Siddeshwar V. Kittur v. H. T. Gurumurthy in Criminal Appeal No.81 of 2006 wherein the learned Single Judge had observed that “having regard to the evidence led by the parties, the accused had discharged the burden of proving that the cheque in question was not issued in respect of legally recoverable debt. Moreover, it is pertinent to note that in respect of other two cheques of Rs.1,00,000/- each, no complaint has been filed by the complainant against the accused which fact raised serious doubt about the case set out by the complainant, and, therefore the acquittal of the accused was not liable to be interfered with”. 14. The Judgment in Criminal Appeal No.81 of 2006 stood on its own facts and is inapplicable to the facts of this case wherein the case 12 of the complainant has been consistent and is supported by documents. Admittedly, there was no receipt involved in the cases pertaining to the cheques of Rs.3,00,000/- and Rs.4,00,000/- which were the subject matter of two other cases, one of which came to be acquitted by Judgment dated 3-2-2010 and the other was not filed after the complaint was returned to the complainant. There are several reasons why the case relating to the cheque of Rs.3,00,000/- filed by the complainant failed, and one of them is that the learned trial Court drew adverse inference against the non examination of the brother-in-law of the complainant Shri Uday Kavlekar to whom the said amount of Rs.3,00,000/- was to be paid but whom the accused himself has examined in this case. The other, the learned J.M.F.C. found that the complainant had not disclosed that the transaction in respect of those cheques was between the said brother- in-law of the complainant and the parents of the accused. The learned J.M.F.C. had also observed that the complainant was not even able to substantiate his case set out in the examination-in-chief apart from the fact that it lacked corroboration. Indeed, the learned J.M.F.C. drew an adverse inference against the complainant for not examining the said brother-in-law in view of the somersault made by the complainant in his cross-examination. 13 15. In this case, the complainant has clearly admitted that the said two cases pertaining to the said two cheques for Rs.3,00,000/- and Rs.4,00,000/- were filed by him on behalf of his brother-in-law the said Uday Kavlekar and the present case was his personal case. The complainant had also stated that in the said two other cases the cheques issued to the complainant were for the amounts due to his brother-in-law and not to himself as his brother-in-law was abroad. The case of the complainant in this case has been consistent unlike in the complaint pertaining to the cheque for Rs.3,00,000/- and it is supported by a receipt and the subject cheque. Apart from a bare denial, the accused has not been able to create even a dent to the complainant's case as regards the giving of the said receipt, acknowledging the sum of Rs.2,67,000/- on which receipt even the subject cheque number was mentioned. 16. The accused did not examine himself in support of the defence taken by him; not that it was necessary, but also did not examine his brother Naresh Tari or his mother in whose presence according to the accused the incident of 6-3-2004 had taken place and the fact that the Police took no cognizance of the same clearly goes to show that, that is a false story put forward by the accused to wriggle out from the situation 14 the accused was placed. Although, it was alleged that the complainant had made illegal entry into his house with his brother-in-law, no whisper was raised by the accused when the said Uday was examined. It was not the case of the accused that the receipt was also prepared duly signed and kept by him in the house, to be stolen by the complainant. The complainant's statement made on 28-2-2005 that he did not have any other cheques in his possession cannot be considered to be false, as it is corroborated by the defence witness DW1/Uday Kavlekar. Even if the complainant had made an incorrect statement that on 28-2-2005 he did not have any other cheques the same was not sufficient to rebut entire case of the complainant which as already stated is supported by the subject cheque as well as by the receipt. That apart, the story of the accused that he had kept three cheques duly signed which were taken by the complainant is hard to be believed in the absence of any explanation since no person would keep three signed blank cheques in his house. There is no cross-examination even to remotely suggest that the other details were filled in by the complainant. There is also no explanation from the accused as to whether he had informed his bankers not to honour any of the said three cheques if presented for payment and in fact 15 the subject cheque has been dishonoured because of insufficient funds. If there was a serious incident as complained by the accused on 6-3-2004 the accused would have certainly pursued it further and not rest with the advice of the Police that their dispute was of civil nature. This is a case where adverse inference has got to be drawn against the accused for non examination of his brother and mother who according to him were present when the alleged accident took place on 6-3-2004 when the complainant is stated to have taken the subject cheque along with two others, etc. 17. To repeat, in this case there is not only the subject cheque duly signed by the accused given to the complainant but also there is a receipt duly signed by the accused even mentioning the number of cheque. The accused has not sought any explanation from the complainant nor given his own by stepping in the witness box as to why the last serial number ought to have been of a cheque dated prior to the two. From the evidence the accused tried to bring on record, it appears that the accused is capable of anything. There was no necessity for the complainant to have proved the actual payment of Rs.2,67,000/- to the 16 accused. That might have been necessary in case the accused was able to discharge the initial burden which was on him and which the accused has failed to discharge although he examined several witnesses without examining himself. Once, the complainant had produced the subject cheque, the Court was bound to draw the presumption in favour of the complainant as stipulated by Sections 138 and 139 of the Negotiable Instruments Act, 1881. The law on the subject is very clear. The Apex Court in the case of Hiten P. Dalal v. Bratinranath Banerjee((2001) 6 SCC 16) has held that it is obligatory upon the Court in terms of Sections 138 and 139 to raise the presumption in every case where the factual basis of the raising of presumption has been established. Again, the Apex Court in K. Bhaskaran v. Sankaran Balan(AIR 1999 SC 3762) has held that once the signature on the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date of which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut such presumption. Yet again, in Bharat Barrel & Drum 17 Manufacturing Company v. Amin Chand Pyarelal((1999) 3 SCC 35) the Apex Court has reiterated the position of law that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial 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 disentitle him to the grant of relief on the basis of the 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. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. 18 18. I have already concluded that the defence taken by the accused is not only highly improbable but is false. As set out in his complaint dated 6-3-2004 the plea of the accused as regards the incident of 6-3-2004 was not accepted by the Police and the accused made no effort to substantiate the same either by examining himself, his brother or mother. The complainant was therefore certainly entitled to the benefit of the presumptions that the subject cheque was issued by the accused to the complainant towards the liability of Rs.2,67,000/- which was also independently acknowledged by the accused by a duly signed receipt. That apart, the accused had even gone to the extent of suggesting that the sum of Rs.2,67,000/- was not due to him as the same was received by him, suggesting thereby that what was received was paid back. 19. The learned J.M.F.C. referred to the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde((2008) 2 SCC(Cri) 166) which case has now been explained by the Apex Court in Rangappa v. Sri Mohan(AIR 2010 SC 1898). Not that the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde(supra) had made any departure from the law laid down by the Apex Court, earlier. In fact, it had followed some of the decisions which I have referred to herein 19 above but had only cautioned that the Courts should not put a blind eye to the ground realities; and we must not forget that the ground realities in this country is that the colour of our economy is more black than white. Therefore, much also cannot be made only because a payment of Rs.20,000/- was not made by cheque which is otherwise required to be done. 20. In view of the above discussion, the Judgment of the learned J.M.F.C. dated 7-5-2010 requires to be disturbed and is hereby set aside. The accused is convicted under Section 138 of the Negotiable Instruments Act, 1881. 21. On the aspect of sentence, Shri Arolkar, learned Counsel of the complainant has left the matter to the discretion of the Court. On the other hand, Shri Monteiro, learned Counsel