IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 51 OF 2007 SHRI. SATISH VAMAN MADKAIKAR ... Petitioner Versus SHRI. XAVIER D'SOUZA AND ANR., ... Respondents Mr. Shivan Dessai, Advocate for the Petitioner. Mr. Marvin D'Souza, Advocate for Respondent No. 1. Coram:- N. A. BRITTO, J. Date:- 7th July, 2008 P.C.: Heard learned Counsel on behalf of both parties. 2. The petitioner herein is an accused, who has been convicted and sentenced under Section 138 of the Negotiable Instruments Act, 1881, by the learned JMFC, Panaji by judgment dated 13/10/2004 and which conviction and sentence has been upheld by the learned Sessions Judge by judgment dated 15/07/2007. 3. The complainant and the accused are both builders. The case of the complainant is that he had advanced to the accused a loan of Rs. 7 lacs repayable with interest at the rate of Rs. 10,000/- per month per lac and the accused had assured a double bed room flat in his project at Batulem, Panaji-Goa, but as no flat was given as per the assurance, the accused on 17/06/1998 issued the subject cheque bearing no. 547684 for Rs. 7 lacs dated 18/06/1998 which cheque when sent for realization returned with endorsement that the funds were insufficient, whereupon the complainant addressed a legal notice dated 25/06/1998 to the accused demanding payment within 15 days, which notice the accused received but failed to comply and, as such, the complainant filed the complaint. 4. The complainant examined himself in support of the complaint but the accused did not enter into the witness box but examined four Bank Managers of four Bank branches and one notary. The Bank Managers were examined to support the contention that in January, 1996, at the time of giving the loan, the complainant had not withdrawn any amount as stated by the complainant in his evidence and the notary to say that the agreement was not executed before him. It appears that prior to handing over the subject cheque dated 18/06/1998, on 17/06/1998, there was an agreement between the parties, executed on 18/07/1996 and further the accused had also executed a promissory note on 30/09/1998. 5. The learned trial Court after referring to the cases of HITEN P. DALAL V/S. BRATINDRANATH BANERJEE (2001(5) SUPREME 49) as well as K.N. BEENA V/S. MUNIYRAM (2001 (7) SCALE 331), came to the conclusion that the accused had failed to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, 1881 and the burden therefore had shifted to the accused to prove that there was no debt or other liability towards the complainant. The learned Session Judge came to the conclusion that there was sufficient evidence on record to prove that prior to the issue of the subject cheque there was an agreement executed on 18/07/1996 and that by virtue of the promissory note subsequently executed on 30/09/1998 the accused had promised to pay the said amount of Rs. 7 lacs borrowed by him from the complainant and therefore there was ample evidence on record to establish that the complainant had given to the accused an amount of Rs. 7 lacs and towards the payment of the same, the accused had issued the subject cheque and therefore it was true that the subject cheque was issued in discharge of his liability towards the complainant. 6. Learned Counsel on behalf of the petitioner/accused submits that there were too many versions given by the complainant as regards the advancement of money to the accused and therefore on the basis of the same, the presumption available in favour of the complainant in terms of the relevant Sections of the Act was sufficiently rebutted. 7. This is a revision petition and the scope for appreciation of evidence is restricted. Both the Courts below, upon consideration of evidence produced on behalf of the parties, have come to the conclusion that the subject cheque was issued by the accused towards the repayment of the advance of Rs. 7 lacs given by the complainant to the accused. The fact remains that the accused had no particular defence as to why he had given the subject cheque to the complainant except a bare suggestion that the blank cheque was given towards construction. In other words, the accused had admitted giving of the cheque and with that admission, the presumptions in the favour of the complainant available under Sections 138, 118, 139 of the Act, followed. The accused did not step in the witness box at all nor gave any explanation, much less a satisfactory explanation, why the subject cheque was given to the complainant. The question of the complainant leading evidence that he had advanced a loan of Rs. 7 lacs to the accused would have come in picture only in case the accused was able to discharge the burden that the subject cheque was issued without consideration. 8. Next, learned Counsel on behalf of the accused submits that the compensation ordered to be paid by the learned JMFC is excessive. This point does not appear to have been raised before the learned Sessions Judge. Considering that the subject cheque was given a decade back as repayment of Rs. 7 lacs which the accused was required to pay with interest of Rs. 10,000/- per month per lac, I am not inclined to interfere with the sentence as well. 9. There is no merit in this revision petition and therefore the same is hereby dismissed. Counsel on behalf of the applicant states that there is already an NBW issued towards the execution of the sentence by the learned trial Court. Revision petition is hereby dismissed. N. A. BRITTO, J. NH