1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 76 OF 2008 Shri Kishor S. Borcar .... Petitioner V/s Shri Sanjabij Tari & Anr. .... Respondents Mr. A. Monteiro, Advocate for the Petitioner. Mr. S.M. Singbal, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 16 th APRIL, 2009 . ORAL ORDER: Challenge in this petition, which can be considered under Section 482 of the Code of Criminal Procedure, 1973, is to the judgment dated 17/09/2008 of the learned Sessions Judge, Panaji upholding the conviction and sentence imposed upon the accused by judgment dated 30/04/2007 of the learned JMFC, Ponda, under Section 138 of the Negotiable Instruments Act, 1881. 2. Heard Shri A. Monteiro, the learned Counsel on behalf of the petitioner/accused. The respondent/complainant who was duly served with rule on 12/02/2009 has chosen to remain absent, yesterday and today, when the petition was taken up for hearing. 3. The subject matter of the dispute between the petitioner/accused and the respondent no.1/complainant is a cheque dated 3/05/2005 for Rs.6 lacs. 2 According to the complainant, the said cheque was given by the accused in favour of the complainant for the amounts due to the complainant by the accused for payment of liability of the accused to the complainant. The case of the accused is that the said cheque was given duly signed in blank as requested by the complainant as he required the same to be shown in the Bank for obtaining a loan. The complainant examined himself in support of his case and so did the accused, in support of his defence. The complainant is a commerce graduate while the accused has a hotel at Upper Bazar at Ponda and both were friends. There is no dispute that the said cheque was presented for payment within its period of validity and it was returned unpaid with remark that the funds were insufficient. A registered notice was sent by the complainant to the accused, by letter dated 4/05/2005, calling upon the accused to make the payment which notice the accused received, but, did not reply nor made payment as required. 4. The learned trial Court found that the version given by the accused was not probable and further held that in case the complainant had filled in the details of the cheque and had presented it for payment, the accused as a prudent man would have lodged a complaint to the police. The learned trial Court also found that the accused as a prudent man would have replied to the notice and further held that the version of the accused that he did not take the said notice seriously could not be accepted as a conduct of a prudent man and 3 also held that the accused did not reply to the said notice as he knew very well that he owed money to the complainant towards the said cheque. The learned Magistrate further held that the accused had not disputed his signature on the said cheque and accepted the version of the complainant that the amount due towards the cheque was advanced by the complainant to the accused in two different instalments and on two different occasions. The learned trial Court therefore held that the accused had failed to rebut the presumption under Section 139 of the Negotiable Instruments Act by showing that the cheque in question was not issued towards legally enforceable debt or the other liability and proceeded to convict and sentence the accused as aforesaid. 5. The learned Sessions Judge also found that the explanation of the accused that he did not take the notice seriously and, therefore, did not send a reply, was not at all a satisfactory explanation and adverse inference was bound to be drawn against the accused and the fact that the accused did not reply to the said notice meant that the accused did not dispute that the said amount of Rs.6 lacs was legally recoverable. The learned Sessions Judge also did not accept explanation of the accused that the complainant had taken the cheque to show in the bank was unbelievable. The learned Sessions Judge also noted that during the course of hearing on the point of sentence before the learned Magistrate, the accused had admitted that he was ready to 4 pay the amount to the complainant. The aforesaid conduct of the accused showed that there was really a transaction of giving money to the complainant by the accused and thereafter proceeded to dismiss the appeal filed by the complainant. 6. Shri Monteiro, the learned Counsel appearing on behalf of the petitioner/accused has submitted that the complainant did not even mention in his complaint about the money lent by the complainant to the accused except to aver vaguely that the cheque was issued for payment of liability by the accused and that was also the position in the affidavit in evidence filed by the complainant. Learned Counsel further submits that the cross-examination of the complainant shows that the complainant was not a person who had means to lend Rs.6 lacs in two instalments as stated by the complainant for the cross-examination itself shows that the complainant's take away salary at the relevant time was only Rs.2,300/- and otherwise the complainant had also borrowed several loans from time to time. Learned Counsel further submits that although the demand notice was received by the accused it was not replied for by the accused because the accused was unwell and had not taken the notice seriously. Learned Counsel further submits that only because the accused stated before the learned JMFC at the time of hearing him on the point of sentence, when he was told that he had to go to jail, that he was ready to pay the cheque amount, that could not be taken as an admission on 5 the part of the accused as there was no other option for the accused to have made the said statement when faced with the threat of being sent to prison. Learned Counsel further submits that the complainant who had ample opportunity, in view of the defence taken by the accused, to prove that the complainant had actually lent any amount to the accused and, in fact, the complainant was not in a position to lend any amount to the accused for the accused himself was taking loans for one reason or the other from several sources. 7. As already stated, the complainant and the accused gave evidence in support of their respective cases. Considering that the complainant and the accused were friends and the former was in habit of taking loans, the version of the accused given on oath by him, that he had given signed blank cheque in order to facilitate the complainant to take loans from the bank, appears to be far more probable than the story set up by the complainant. There is no dispute that the complainant and the accused were friends. From the cross- examination of the complainant, the accused has been able to establish that the complainant was getting meagre salary and had taken several loans. It is not unknown that loans were being obtained on the basis of such cheques and the very reason why the Act was amended was to lend credibility for cheque transactions and to curb the evil practice of issuing cheques in settlement of liabilities without there being adequate amount in the account. In my view, 6 both the Courts below have not considered the evidence of the complainant in proper perspective and both the Courts below have gone only on the basis of the presumptions only, which are available to the complainant by virtue of Section 138,118 & 139 of the Negotiable Instruments Act, 1881. In fact, the Apex Court in Krishna Janardhan Bhat V/s. Dattatraya G. Hegde (2008 (2) SCC (Cri.) 166), a decision which was also cited before the learned Sessions Judge, has stated that a statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not must therefore be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the accused is not imperative. In a case of this nature where chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. Considering the facts of that case, the Apex Court noted that, the Courts below had proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The Courts below, in the opinion of their Lordships, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden and such an approach on the part of the Courts was incorrect. The Apex Court also noted that the accused while discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials 7 already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. 8. That the accused had not replied to the statutory notice would at the most be considered as one of the circumstance going against the accused but on the basis of the same no inference of guilt could be inferred against the accused. Likewise, it is quite probable that when the accused was told that he had to go to jail at the time of hearing him on the point of sentence that the accused might have stated that he was ready to pay the amount of the cheque to the complainant but that again could not have been considered as a statement of guilt on the part of the accused. The complainant’s cross- examination has left gaping holes which could not be filled in. The complainant did not set out in his complaint as to when he had advanced the loan to the accused, for the repayment of which, the accused had issued a cheque in question. That may not be a legal requirement but certainly such absence would be relevant for the purpose of appreciation of evidence. The complainant when questioned as regards the mode of advancing money to the accused, stated that the first instalment of Rs.3 lacs was given in the month of March, 2004 and the next instalment of Rs.3 lacs was given in April, 2005. It is difficult to believe that the complainant gave cash of Rs.3 lacs even without obtaining a receipt from the accused and waited for over a year to 8 receive the cheque from the accused and that too after payment of another cash amount of Rs.3 lacs. The cross-examination of the complainant further shows that the complainant had a family of 5 members and his gross salary for the year 1996 was Rs.3,500/- and net salary was Rs.2,800/-. The complainant had obtained a loan of Rs.50,000/- in the year 2003 or thereabout. He had taken another loan of Rs.1 lac in the year 2005 i.e. in the year the complainant claims having lent Rs.3 lacs to he accused. The complainant had taken another loan of Rs.2 lacs in February, 2004. The complainant admitted that even as on 6/07/2006, the said loans were not fully paid. Although the complainant stated that he had a grocery shop being looked after by his mother, the complainant was unable to make good the said statement by providing some additional evidence. As regards the second instalment he stated that he had borrowed the amount from his father who was having business of selling plots but here again he was unable to make good the said statement. On further cross-examination he stated that he was not aware whether his father was filing income tax or sales tax returns and as his father did not keep any such record, he was unable to produce the same. The complainant further stated that on both the occasions when he advanced Rs.3 lacs to the accused there was no other person present. In further cross- examination, the complainant stated that he had taken a further loan of Rs. 50,000/- after 3/05/2005. The entire cross-examination of the complainant shows that the complainant had a miserable take away salary of Rs. 2,800/- in 9 the year 1996 and had 5 members of family to support. He had taken loans after loans and such a person would not have been in a position to have lent a sum of Rs. 6 lacs either in one or two instalments to the accused. It is more than probable that the complainant with the view to facilitate obtaining of such loans had taken a blank cheque from the accused, as contended by the accused and, as such, the complainant’s version that he had lent any amount to the accused could not have been accepted. The Apex Court in the case of Krishna Janardhan Bhat V/s. Dattatraya G. Hegde (supra) had also stated that the Courts below had failed to notice that ordinarily in terms of Section 269-SS of the Income Tax Act, any advance taken by way of loan of more than Rs.20,000/- was to be made by way of an account payee cheque only. The Court approved a view held in M. S. Narayana Menon V/s. State of Kerala (2006 (3) SCC (Cri.) 30) and held, considering the peculiar facts and circumstances of the case, that the Courts below had approached the case from the wholly wrong angle i.e. wrong application of legal situation in the fact situation of the case. 9. Considering the facts of this case as well, both the Courts below appear to have proceeded only on the basis of presumption when in fact the accused had stepped in the witness box and had given evidence under what circumstances he had given a cheque in favour of the complainant which was far more probable considering that the complainant himself was taking loans 10 to meet his financial needs from different sources and therefore once the presumption was rebutted it was for the complainant to have proved that in fact he had advanced the loan as stated by him which the complainant miserably failed to prove. No prudent man could ever believe that the complainant even as friend parted with Rs.3 lacs in March, 2004 in cash without any receipt and again in April, 2005 again without any receipt only to receive a cheque in May, 2005. 10. In the light of the above discussion, this petition deserves to succeed. Consequently, the orders of both the Courts below are hereby set aside and the accused acquitted under Section 138 of the said Act. N.A. BRITTO, J. NH/-