1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 309 OF 2009 AND CRIMINAL MISC. APPLICATION NO. 59 OF 2010 Shri Teofilo Isidorio Stuart Mascarenhas, 33 years of age, in service, resident of H.No.179, Piedade Wado, Arossim, Cansaulim-Goa. …. Applicant V/s 1. Shri Teofilo Aldrin Simon Sequeira, major of age, resident of House No.291, Primeiro Waddo, Velsao, Cansaulim-Goa. 2. State of Goa, through its Public Prosecutor, High Court of Bombay at Goa. …. Respondents Mr. D. Pangam, Advocate for the Applicant. Mr. A.D. Bhobe, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 23rd JUNE, 2010 ORDER : The complainant seeks leave to appeal. Heard learned Counsel. 2. The complainant prosecuted the accused under Section 138 of the Negotiable Instruments Act, 1881. The case of the complainant is that he advanced a loan of Rs.20 lacs to the accused in the first week of November, 2006 and as the accused neglected to pay the said loan within 3 months, the accused issued two cheques, one dated 10/08/2008 for Rs.15 lacs, and the other dated 10/11/2008 for Rs.5 lacs, which cheques when deposited by the complainant for collection were returned 2 unpaid on 29/11/2008 on the ground that the funds were insufficient. A demand notice was sent on 26/12/2008 which was received by the accused, but the same was not complied with. The complainant examined himself in support of his case. 3. The defence of the accused was that an amount of only Rs.10 lacs was supposed to be paid to the complainant and it was paid at the time of execution of sale deed dated 16/07/2008. The accused examined himself in support of his defence. 4. The complainant has now filed an application under Section 391 of the Code of Criminal Procedure Code, 1973 seeking leave to produce the bank statements of the accounts of the accused. According to the complainant, the said statements show that between 24/10/2006 to 7/11/2006 the complainant had withdrawn an amount of Rs.17,55,000/- and the balance amount of Rs.2,45,000/- was paid by the accused to the complainant from the cash he was having in hand. Learned Counsel appearing on behalf of the complainant, when faced with the situation that the said statement does not support the complainant's case that the entire amount of Rs.20 lacs was lent by the complainant to the accused in the first week of November, 2006, has submitted that the said bank statements are sought to be produced only to support the case of the complainant that he had capacity to advance such a large amount to the 3 accused. Learned Counsel has placed reliance on Zahira Habibulla H. Sheikh & Anr. V/s. State of Gujarat & Ors. (2004 (4) SCC 158). 5. As regards the said bank statements, the complainant was questioned on 16/06/2009 whether he could produce any document to show that he had withdrawn the said amount from the bank and although the complainant stated that he could produce the said document on the next date, the complainant did not produce the same on 15/07/2009 and when the complainant was questioned about it he stated that he had not brought the statement of account and a suggestion was put to him that he had no document to show that he had withdrawn the amount of Rs.20 lacs from his account. The complainant was aware about the existence of the said statements of account and inspite of having had an opportunity did not produce the same and in the circumstances therefore, the production of the said documents cannot be allowed now on the specious ground that the complainant was advised not to produce the same in as much as it also does not support the case of the complainant that the money was withdrawn at one time and given to the accused at one time in the first week of November, 2006, as stated by him. 6. The Apex Court in Zahira Habibulla H. Sheikh & Anr. V/s. State of Gujarat & Ors. (supra) has observed that the primary object of 4 Section 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. This is a case where the complainant could have produced the said statement, but chose not to produce the same and therefore I am not inclined to grant leave to the complainant to produce the same. Criminal Miscellaneous Application no.59 of 2010, therefore, is hereby dismissed. 7. Reverting to the case of the complainant, the accused came to be acquitted by the learned JMFC, inter alia, observing that it was unbelievable that a prudent man would lend such huge amount without knowing the details of the income of the borrower and without accepting any document. The learned JMFC also drew adverse inference from non-production of the statements of account of the accused and further held that the defence of the accused that the amount of the loan was not taken by him had to be considered as a probable defence in the absence of the evidence produced by the complainant to show that the said amount was actually given to the accused. 8. There was much between the parties, then what meets the eye. 5 The complainant by sale deed dated 6/11/2006 purchased a property surveyed under no.17/2 for Rs.4.62 lacs from the accused, who is a developer, as a confirming party, to the said sale deed. According to the accused, the sum of Rs.4.62 lacs was paid to the accused by cheque, but the deal was for Rs.10 lacs and the balance amount was paid by the complainant in black money. Thereafter, the complainant purchased another property by sale deed dated 3/01/2007 surveyed under no.17/1 and both the properties admeasuring 1588 and 70 square meters, respectively were then purchased by the accused from the complainant and his wife by sale deed dated 16/07/2008. According to the accused, one Charissa D'Souza filed a civil suit against him being RCS No.96/06/ B before the Civil Judge Senior Division at Vasco, one of the said two properties being the subject matter of the said suit, whereupon the complainant approached him and forced him to cancel the deed and to return his entire money of Rs.10 lacs and since the accused was not in a position to pay the said amount that the said deed of settlement dated 9/05/2008 was signed by him under pressure from the complainant with the promise that the complainant would not use the said settlement deed or the cheques given along with it. According to him, the amount shown on the said settlement deed was the amount which was double the amount of the sale deed. Shri Bhobe, learned Counsel on behalf of the accused, submitted that the first 4 paragraphs of the affidavit of evidence of the accused have not been denied by the complainant and therefore 6 whatever liability the accused had towards the complainant was met by him by paying Rs.9 lacs by cheque and Rs.1 lac in cash, in black. 9. Shri Pangam, learned Counsel on behalf of the complainant submits that the totality of evidence produced by the complainant shows that the complainant had capacity of advancing Rs.20 lacs to the accused. Learned Counsel further submits that the complainant's capacity also could not be doubted because according to the accused the complainant had paid Rs.10 lacs at the time of execution of sale deed dated 6/11/2006. Learned Counsel further submits that Rs.10 lacs paid by the accused was the consideration of the sale deed by which both the properties were transferred back to the accused by sale deed dated 16/07/2008 and what remained is the settlement deed by which the accused had acknowledged having received Rs.20 lacs from the complainant and the accused had failed to prove that the said settlement deed was executed under pressure from the accused. Learned Counsel submits that once the subject cheques were signed by the accused the presumption in terms of Section 138, 139 of the Negotiable Instruments Act, 1881 followed which presumption got fortified by the admission of the accused that the accused had owed a sum of Rs. 10 lacs to the complainant. 10. In my view, the submissions made by learned Counsel appearing 7 on behalf of the complainant cannot be accepted. The view held by the learned JMFC appears to be a plausible view. Considering the over all evidence on record of the case, it is very very difficult to believe that the complainant had advanced a sum of Rs.20 lacs by cash in one go in the first week of November, 2006 and had waited for one and half year without taking any receipt from the accused or filing the income tax returns showing the said advance of loan or any other documentary evidence in support of the said lending till 9/05/2008 to execute the said settlement deed. The complainant might have had capacity to pay to the accused Rs.20 lacs, but the question as to whether the complainant had indeed paid the said amount of Rs.20 lacs in the first week of November, 2006 as stated by him by withdrawing the same from the Bank at one time. The bank account statements do not support the case of the complainant as deposed by him particularly that Rs.20 lacs were given in lump sum. Nobody withdraws money over a period of time in small sums to make a payment in lump sum. In other words, no prudent man withdraws money in bits and pieces, if I may use that expression, from 2 different accounts in order to pay a large sum of money to another person. Statements show that Swapna developers were paid large sums by cheques. If so why not the accused? That the complainant had withdrawn a sum of Rs.20 lacs at one time, as stated by him, has also now been disproved with the production of the statements of account and in such a situation the explanation given by the accused appears to 8 be more plausible that he did not owe more than Rs.10 lacs to the complainant which was paid at the time of execution of the third sale deed dated 9/05/2008. 11. Considering the over all facts of the case, this is not a fit case for the grant of special leave to appeal and, consequently, the application is hereby dismissed. N.A. BRITTO, J. NH/-