1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 24 OF 2008 Mr. Devidas G.Naik alias Rupesh Naik, son of Gopal Naik,, major in age, r/o Ground Floor, Cozy Building, Baina, Vasco-da-Gama, Goa. ... Appellant versus Mr. Navi Naik, son of Prakash Naik, major in age, IV/4/Building V-82, Near Desterro Church, Vasco-da-Gama, Goa. ... Respondent Shri T. Pereira, Advocate for the Appellant. Ms. H. Fernandes, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 14TH JULY, 2010. JUDGMENT This is a Complainant's appeal and is directed against Judgment dated 4-12-2007 of the learned J.M.F.C., Vasco-da-Gama, acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881(Act, for short). 2 2. The case of the Complainant is that the accused borrowed an amount of Rs.2,00,000/- from the Complainant, and towards repayment of the same the accused issued cheque bearing No.8763 dated 17-1-2005 drawn on his account in Development Credit Bank Limited, Vasco, which cheque when presented for payment on 17-1-2005 was dishonoured on the ground that the account was closed. The Complainant issued a demand notice dated 21-1-2005 which the accused received on 27-1-2005 and as the accused did not comply with the notice, the Complainant filed his complaint. 3. The Complainant examined himself in support of the complaint and produced the subject cheque, the cheque returned memo, copy of the demand notice and another writing given by the accused dated 23-7-2005 admitting the issuance of the subject cheque and seeking time to pay the amount due. This writing according to the Complainant was given by the accused after the complaint was filed, and summons issued to the accused were being returned for want of service. Records show that process was ordered to be issued to the accused on 13-4-2005 and the accused was produced for the first time pursuant to execution of a warrant on 31-11-2006. 4. The case of the accused is that he had not received any amount from the Complainant and was not liable to pay any to the Complainant. According to him, he had issued a signed blank cheque. At times it was 3 suggested to the Complainant that the subject cheque was obtained by the Complainant as security when the Complainant lent Rs.20,000/- to Arti Nagolkar. In his statement under Section 313 of the Code, it was the case of the accused that the said cheque was given to Arti Nagolkar and not to the Complainant. The accused examined himself in support of his case. 5. The learned J.M.F.C.(Magistrate, for short) appears to have been much impressed from the fact that the accused gave his evidence, and, came to the conclusion that the Complainant was not able to destroy the evidence given by the accused. The learned Magistrate also came to the conclusion that the Complainant failed to prove that the disputed cheque was not a cheque given as security but it was a cheque issued in discharge of a legally enforceable debt or other liability. 6. There is no dispute that the Complainant had advanced a sum of Rs.20,000/- to the said Arti Nagolkar, a friend of the accused, and on account of dishonour of cheque given by her, the Complaiannt had filed a case against her under Section 138 of the Act but had withdrawn the same, after the said Arti Nagolkar paid the amount due to the Complainant, and, this is stated to have happened in the year 2006. 4 7. Shri T. Pereira, the learned Counsel appearing on behalf of the Complainant submits that the accused had taken a very specific defence and the same could have been proved by him only by examining the said Arti Nagolkar who was the friend of the accused. Learned Counsel submits that the accused has admitted his signature on the cheque, and, therefore the presumptions available in law were in favour of the Complainant. Learned Counsel submits that in case an amount of Rs.20,000/- was given by the Complainant to the said Arti Nagolkar, there is no reason why the accused ought to have given a blank cheque, and not a cheque in the said sum of Rs.20,000/-. Learned Counsel submits that the defence taken by the accused, as regards the issuance of the subject cheque is conflicting, and, therefore ought not to have been relied upon by the learned trial Court. Learned Counsel submits that when the version given by the accused was conflicting and unacceptable there was no question of the accused with his own evidence having probabilised his defence. Learned Counsel submits that the accused could not have probabilised his defence without examining the said Arti Nagolkar, and in fact adverse inference ought to have been drawn against the accused for the non examination of the said Arti Nagolkar. Learned Counsel submits that once the signature on the cheque is admitted, who wrote the other particulars of the same would be of no consequence. 5 8. Shri T. Pereira further submits that the accused received the demand notice but did not care to reply. Learned Counsel further submits that the accused gave a cheque from an account which was closed and this proves the malafides of the accused. Learned Counsel also submits that the accused had given a letter-Exh.P29 dated 23-7-2005 which corroborated the case of the Complainant. According to the learned Counsel, the learned Magistrate has given no finding as regards the said letter. Shri T. Pereira has placed reliance on a decision of the Apex Court in K. N. Beena v. Muniyappan and another (AIR 2001 SC 2895) wherein reference was made to Hiten P. Dalal v. Bratindranath Banerjee(2001 (6) SCC 16) which is a three Judge decision of the Apex Court and wherein it is held that under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument(including a cheque) had been made or drawn for consideration. Under Section 139, the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability, and thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability which presumption was rebuttable but the burden of proving that a cheque had not been issued for a debt or liability is on the accused. 9. On the other hand, Ms. H. Fernandes, the learned Counsel appearing on behalf of the accused, has submitted that the Complainant is 6 known to the accused as Devidas Naik, and the notice was sent to the accused in the name of Rupesh Naik, and, therefore there is no compliance of Section 138(b) of the Act. Learned Counsel has further submitted that the Complainant had failed to prove that there was any debt or liability and in this context, learned Counsel has placed reliance on the case of Shiva Murthy v. Amruthraj(2009 ALL MR(Cri) Journal 119) wherein it is stated that Complainant must first prove the existence of legally enforceable debt or liability and then only Courts can proceed to draw presumption under Section 139 of the said Act, and find out as to whether or not the accused has rebutted the said presumption. Learned Counsel has also placed reliance on Kishore Shankar Singapurkar v. State of Maharashtra and another(2003 ALL MR(Cri) 1867) wherein this Court has stated that the Complainant should narrate the entire history of the transaction and offshoots of the transaction resulting in litigation between the parties, and that it is the bounden duty of every Complainant to narrate full details of the transactions, including the past history and the litigations arising out of it whenever he files a complaint in a Criminal Court, and if he does not do that, the Court is very much likely to be misled and there would be an error which would be assailed by the aggrieved party in higher Court. Learned Counsel has also placed reliance on Krishna Janardhan Bhat v. Dattatraya G. Hegde(2008 ALL MR(Cri) 1164(S.C.), and, on Avon Organics, Hyd. Limited v. Pioneer Products Ltd. and others(2003 ALL MR(Cri) Journal 105) wherein it is stated that a person who 7 accepts a blank cheque does so at his own risk and when a Complainant fills up the amount and the date as per the choice of the Complainant there is material alteration. Learned Counsel has also placed reliance on Mrs. Devarsha Dnyaneshwar Parob v. Mulgao-Sirigao- Advalpal, V.K.S. Society Ltd. and another(2010 ALL MR(Cri) 1775) wherein it is observed that inference of preponderance of probablities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies and that the accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of material already brought on record. The question as to whether the presumption is rebutted or not, must therefore, be determined keeping in view the other evidence on record. 10. First, I will deal with the notice which the accused admittedly received but did not reply. The said notice as can be seen from it, was sent on behalf of Mr. Rupesh Naik by Advocate Shri Xetgaonkar, and it was not replied to by the accused. At first, the accused denied having received the notice but when the A.D. card was shown to him he admitted his signature and further stated that he did not reply to it because it was sent in the name of Rupesh Naik and he knew the Complainant as Devidas Naik. However, there is no dispute that the said notice gives the number of the cheque, the date of the cheque and the amount for which it was meant. One plea taken by the 8 accused is that the cheque was given to the Complainant. If that is so, the accused from details of the cheque mentioned therein would have known, as a prudent man, that the Complainant was also known as Rupesh Naik and could have sent a reply to the Advocate of the Complainant. In case the cheque was given to Arti Nagolkar, the friend of the accused, the accused could have certainly verified from her as to how the cheque given to her had reached the hands of Rupesh Naik and then replied to the notice of the Complainant. The Complainant was cross-examined on this aspect as well. The complaint was filed by the Complainant with his name as Devidas G. Naik @ Rupesh Naik and in his cross-examination, the Complainant explained that in his birth certificate and school leaving certificate his name is recorded as Devidas Naik but he was known as Rupesh Naik though Rupesh Naik was not recorded in any of the certificates. He fairly admitted that he did not have any diversion certificate to show that his name was Devidas as well as Rupesh Naik. He denied the suggestion that his name was not Rupesh Naik. Admittedly, the complaint was filed by the Complainant as Devidas G. Naik @ Rupesh Naik, and there was no particular reason for the Complainant to file the complaint in those names. He could have also sent the notice in the same manner but it is more than probable that the Advocate who sent the notice on his behalf mentioned the name of the Complainant as Rupesh Naik as he was otherwise known by that name. In the circumstances, therefore, I am not inclined to accept the submission made on behalf of the accused, that because notice was 9 sent in the name of Rupesh Naik that there was no compliance of Section 138(b) of the Act. The accused chose not to reply to the said notice. As a prudent person, in case the accused had given the said cheque to the said Arti Nagolkar which was being made use of by the Complainant the accused would have reacted and sent a reply to the Complainant bringing out the correct position. Failure on the part of the accused to reply to the notice can be considered as a strong circumstance against the accused. In Hemant P. Gracias v. Socorro S. Fernandes(2008(1) Bom.C.R.(Cri.) 117) it was held that the failure of the accused in giving reply to the legal notice issued by the complainant is one of the strong circumstances to draw an inference that the accused borrowed the amount from the complainant and the cheque was issued towards part payment of the legally enforceable debt. If the complainant had fabricated and misused the blank cheque issued by the accused, the accused would have immediately protested and threatened the complainant with legal action and would not wait till the end of the trial without taking any action against the Complainant. Adverse inference is required to be drawn against the accused for not replying to the notice. 11. Next, I will deal with closure of account. The accused was asked about the closure of his account. The accused stated that he closed his account in the year 2006. However, the memorandum of cheque return dated 17-1-2005 shows that the account of the accused was closed. Presumably the 10 account of the accused was closed either on 17-1-2005 or prior to that date, and, therefore it is evident that the accused gave a cheque from his account which was closed which points out to the dishonest intention of the accused. That the accused closed his account in the year 2006 has got to be considered as a false statement. This is another strong circumstance which goes against the accused. 12. The Complainant in his cross-examination stated that he was not a money lender but admitted that he had given Rs.1,50,000/- to Sadanand Raval when his wife was sick and Rs.55,000/- to Pravin Amonkar as loans without interest but the said amounts were given in cash which the said two persons repaid to him partly by cash and partly by cheque. It was also brought on record that another sum of Rs.42,500/- was paid to Pritam Davalkar and Rs.20,000/- to Arti Nagolkar which amounts have been paid back to him. This shows that the Complainant was a man of means. 13. The Complainant in his cross-examination, admitted that the body of the subject cheque was written in a different ink from the signature but denied the suggestion that the accused did not write the contents of the cheque and further denied the suggestion that the subject cheque-Exh.7 was a blank cheque, except for the signature of the accused. In further cross-examination, he admitted that he did not know whether the contents of the cheque, namely 11 the amount and the date were written by the accused or not. Referring to the said writing-Exh.P29, the Complainant stated that the same was written by the accused sitting in his car and at his own instance and was handed over to him on 23-7-2005 i.e. on the date written on it. The Complainant in further cross- examination stated that he knew the accused for about 8 to 10 years and admitted that he did not have any receipt for having given Rs.2,00,000/- to the accused. The Complainant further stated that he did not know who had written the body of the cheque. Regarding the said Arti Nagolkar the Complainant stated that he knew her for about 12 to 15 years, and admitted that she had borrowed Rs.20,000/- from him but denied the suggestion that at the time of lending Rs.20,000/- to Arti Nagolkar he had obtained several cheques from several persons including her father and the accused. Complainant also denied that the subject cheque in blank was given to the Complainant by the said Arti Nagolkar towards the security of the loan of Rs.20,000/- which was repaid to the Complainant before the Court. When the subject cheque-Exh.7, and the writing-Exh.P29 was shown to the Complainant stating that the signatures were different, the Complainant maintained that they were alike. 14. On the other hand, the accused in his statement recorded under Section 313 of the Code stated that the subject cheque was signed by him and given in blank to Arti Nagolkar but in his entire evidence failed to explain as to how a cheque given by him to Arti Nagolkar landed in the hands of the 12 Complainant. In fact, the accused was asked as to why he had not taken back the said cheque when Arti Nagolkar paid the amount to the Complainant and the Complainant withdrew the complaint. All that the accused stated was that he had asked for the return of the said cheque from the Complainant but he did not remember the date, month and year when he had asked to return the cheque to him. This statement was made in the year 2007, and the complaint against the said Arti Nagolkar was withdrawn in the year 2006, and it is difficult to believe that in case the accused had given a blank cheque to the said Arti Nagolkar to be given as security to the Complainant, the accused would have remained quite for a year without taking the said cheque back. I have already noted that the evidence of the accused on this aspect is also inconsistent. According to the suggestions put to the Complainant, the cheque- Exh.7 was a blank cheque signed by him and taken by the Complainant as security of the loan amount of Rs.20,000/- given to Arti Nagolkar by the Complainant. As rightly pointed out on behalf of the Complainant there was no need for the accused to have given a blank cheque, in case what was sought to be secured was an amount of Rs.20,000/- given to Arti Nagolkar. In his affidavit in evidence, the accused stated that he had given the said cheque to Arti Nagolkar, who is his friend and the cheque was not given to the Complainant. Either way, the accused ought to have asked for the return of the cheque after the Complainant was paid the sum advanced to Arti and the Complainant withdrew the case. 13 15. The accused in his further cross-examination, stated that the cheque was given by him to Arti Nagolkar on 16-1-2005, and on 17-1-2005 the said Arti Nagolkar had called him to her residence and told him that she was to give money to one of her friends, and accordingly he came back to his residence and took the cheque and went to Arti's residence with the said cheque and handed it over to her. In further cross-examination, he stated that he did not remember the number of the cheque handed over to Arti Nagolkar by him. In case the said Arti Nagolkar was to take a loan from the Complainant, the said Arti Nagolkar would not have lent money to her friend and take a cheque from the accused. The best person who could have supported the accused that the subject cheque was given by him either to the Complainant or to the said Arti Nagolkar was no other than the said Arti Nagolkar whom the accused cited as his witness but failed to examine her in his defence or for that matter Arti's father who according to the accused is also supposed to have given a cheque to the Complainant to secure the amount taken by the said Arti Nagolkar from the Complainant. In fact, the accused cited both of them as his witnesses but did not examine them. This is a fit case to draw adverse inference against the accused for non examination, particularly of the said Arti Nagolkar. The accused has given no convincing explanation as to how the subject cheque given by him landed in the hands of the Complainant. It is only the said Arti Nagolkar who could have told about it to the Court. In the absence of examination of the said Arti Nagolkar adverse 14 inference has got to be drawn against the accused. In this context, reference could be made to Kundan Lal Rallaram v. Custodian of Evacuee Property(AIR 1961 SC 1316) wherein the Apex Court has stated that adverse inference can be drawn against a party who being in a position to adduce better evidence deliberately abstains from doing so. 16. The Complainant is a man of means, as already noted. The accused himself brought out evidence that the Complainant had lent friendly loans of Rs.20,000/- to Arti Nagolkar, Rs.1,50,000/- to Sadanand Raut, Rs.42,500/- to Pritam Davalkar, and, if that is so it is not difficult to believe that the accused had also lent Rs.2,00,000/- without any receipt to the accused. The accused had admitted his signature. The Complainant has stated that the cheque was brought by the accused with everything written on it. No law provides that in case of a cheque the entire body has to be written by the drawer only. What is material is the signature of the drawer and not who has written the body of the cheque. The mere fact that the payee's name and the sum shown are in different handwriting is no reason for not honouring the cheque. The Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan(AIR 1999 SC 3762) has clearly held that once the signature on the cheque is admitted the presumption envisaged in Section 118 of the Act can be legally inferred that the cheque was drawn for consideration on the date which the cheque bears and then the burden is on the accused to rebut the aforesaid 15 presumption. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of debt or any liability. The burden was on the accused to rebut the aforesaid presumption. The Complainant in this case had not only the presumptions under Section 118(a) as well as Section 139 of the Act in his favour but had also another writing given by the accused which fortified the case of the Complainant. 17. It can be seen from Krishna Janardhan Bhat v. Dattatraya G. Hegde(supra) referring to Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal((1999) 3 SCC 35) that once execution is admitted the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. Therefore, there was no question of the learned Magistrate comparing a xerox copy of the cheque given by Sadanand Raut to the Complainant which was the subject matter of C.C. No.1115/OIA/NI/06/B with the subject cheque and conclude that the handwriting looked similar on both the cheques. On the other hand, the learned Magistrate ought to have compared, if at all, if she wanted to compare the signatures on the original documents, namely the subject cheque-Exh.7, and the letter given by the accused Exh.P29, and if that was done the learned Magistrate would have come to the conclusion that the signature of the accused was similar on the subject cheque and the said writing. Except for the denial of the accused that the said writing-Exh.P29 was not given by him, the 16 accused had not brought anything on record to suggest that the case of the Complainant on that score was improbable. I have already noted the date as to when the said writing was given and there was nothing improbale in the case of the Compainant not to accept his version that the said writing was indeed given by the accused on 23-7-2005. The said writing would further strengthen the presumptions which the Complainant had in his favour by virtue of the accused having executed the cheque in terms of Section 118(a) and Section 139 of the Negotiable Instruments Act, 1881. 18. Krishna Janardhan Bhat v. Dattatraya G. Hegde(supra) does not make any departure from the law laid down by the Apex Court from Kundan Lal Rallaram v. Custodian, Evacuee Property(supra) and thereafter. In fact the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde(supra) has followed