1 IN THE HIGH COURT OF BOMBAY AT GOA Criminal Appeals No.53 and 54 of 2006. M/s Shree Daneshwari Traders A partnership firm having it's business at shop No.8, Masjid Building, Malbhat, Margao Goa represented herein by it's Partner Mr.B. Shashikanth, resident of Margao Goa. ... Appellant. Verses 1. Mr. Sanjay Jain son of Jothraj Jain, major, married, business, having place of business at Griffinfarex Limited, Shop No.C-3, ground floor, Pancharatna Bldg, Margao Goa. 2. State through Public Prosecutor, Panaji. . .. Respondents. Mr. S.S.Kakodkar, Advocate for the Appellant. Mr. Arun Bras De Sa, Advocate for the Respondent no.1. Mr. C.A. Ferreira, Public Prosecutor for the Respondent no.2. 2 CORAM : N.A. BRITTO, J. DATE : 28th July, 2008. ORAL JUDGMENT These are Criminal Appeals filed by the complainant against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881. The subject matter of the first appeal (Criminal Case No.339/04/F) are three cheques, details of which are: ----------------------------------------------------------------------------------------------- Date Number Amount. ----------------------------------------------------------------------------------------------- 1. 08.08.2003 002497 Rs.17,540.00 2. 18.08.2003 002463 Rs.17,871.00 3. 25.08.2003 002480 Rs. 17,760.00 ------------------------------- Total = Rs.53,171.00 ============ ------------------------------------------------------------------------------------------- The subject matter of the second appeal (Criminal Case No.499/04/A) are nine cheques, the details of which are: Date Number Amount. ----------------------------------------------------------------------------------------------- 1. 01.09.2003 002481 Rs. 18,000.00 2. 15.09.2003 633427 Rs. 20,000.00 3 3. 22.09.2003 633428 Rs. 20,000.00 4. 29.09.2003 633429 Rs. 20,000.00 5. 03.10.2003 0531977 Rs. 25,000.00 6. 06.10.2003 633430 Rs. 20,979.00 7. 13.10.2003 0531975 Rs. 20,000.00 8. 27.10.2003 0531976 Rs. 25,000.00 9. 10.11.2003 0531978 Rs. 25,000.00 ------------------------ Total = Rs.1,93,979.00 ========== ---------------------------------------------------------------------------------------------- 2. The case of the complainant was that the accused had issued the subject cheques towards payment for purchase of rice bags. 3. In the first case the complainant examined himself and closed his case. The defence of the accused was that the said cheques were given by way of security towards the goods purchased by the accused but the payment was done by cash. The accused examined himself to support his defence and also examined his father. In the second case the accused did not examine any witnesses. 4. The learned Chief Judicial Magistrate by Judgments dated 31.03.2006 came to the conclusion that the 4 receipts produced by the accused showed that payments were made by the accused towards the credit purchases made by him and the said receipts were pertaining to the same period as that of the cheques. 5. There is no dispute that the subject cheques were given by the accused and in the first case two of the cheques were written by the father of the accused and one cheque was written by the partner of the complainant. In the second case all the cheques were undisputedly given by the accused. 6. There is also no dispute that when the subject cheques were deposited by the complainant, all the cheques were returned dishonoured with endorsement “not arranged for/funds insufficient”. However it is to be noted that when the complainant sent legal notices dated 5.2.2004 and 23.02.2004 respectively, the accused replied to the same, vide his reply dated 03.03.2004 and in para 3 thereof the accused set out that the subject cheques were given by the accused as security at the time of the purchase of the rice bags and commodities but the accused had regularly paid the consideration amount of the same in cash, on various 5 occasions and the same was acknowledged by the complainant by issuing receipts. The accused set out in the said para 3 of the said reply the dates of the receipts and the sums for which they were issued. 7. Shri Kakodkar, learned Counsel on behalf of the complainant submits that no receipt mentions the cheque number in case payment was made by cheque. The learned Counsel further submits that once the chques were issued, there was a presumption in favour of the complainant which the accused failed to rebut. As regards certain remarks made by the learned Chief Judicial Magistrate, in the impugned order, learned Counsel submits that the complainant would have no control as which cheque was issued first and the complainant accepted whatever cheques were given by the accused. On the otherhand, Shri Bras De Sa, the learned Counsel on behalf of the accused submits inspite of the accused having sent a reply that the rice bags were paid for by cash, the complainant, in his Complaint did not make any statement that the complainant had received payment in cash towards the other commodities supplied to the accused which the complainant was bound to make, if the case of the complainant was that the cheques were 6 issued towards the payment of rice bags and the receipts were issued towards the payment of other commodities. 8. As already stated, at the very outset, upon the receipt of the notice, the accused had made it clear that the subject cheques were issued as security towards the goods supplied, for which payment was subsequently made by cash. The accused had also cross examined the complainant in the light of the said notice and the relevant receipts were produced through the complainant. The accused had also examined himself in support of his defence and so also the father of the accused. The complainant was unable to create any dent to the evidence, given by the accused and his father in their cross examination. Considering the aforesaid aspects, this was a case where the presumptions available to the complainant were not only rebutted but the accused was further able to prove that the cheques were indeed given by way of security towards the goods supplied to him and for which he had made payment by cash. As rightly pointed out, on behalf of the accused, it was incumbent upon the complainant to have explained in the Complaint, upon receipt of reply from the accused, that those payments were relating to other commodities and the cheques were meant 7 for payment of rice bags. The complainant's case was not at all consistent. 9. In the light of the above, the impugned Judgments cannot be faulted. There is no merit in these appeals and therefore the same are hereby dismissed. N.A. BRITTO, J. Cg/-