1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 52 OF 2009 Shri Anthony Pereira, residing at Wadi, Merces, Ilhas, Goa. ... Applicant versus Shri Rajan Chandaliya St. Anees Apartments, 2nd Building, 1st Floor, F-4, Vaddy, Merces, Bernard Carneiro, Post St. Cruz, Ilhas, Goa. ... Respondent Shri S. D. Padiyar, Advocate for the Applicant. CORAM : N. A. BRITTO, J. DATE : 2ND MARCH, 2009. ORAL ORDER The Complainant in Other Act Criminal Case No.42/03/B seeks special leave to appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 by Judgment dated 20-10-2008 of the learned J.M.F.C., Panaji. 2 2. The case of the Complainant was that the Complainant had advanced a sum of Rs.2,50,000/- to the accused on 25-5-2002 and towards part repayment of the said amount, the accused had issued two cheques, both dated 25-11-2002 in the sum of Rs.57,000/- and Rs.1,00,000/-, respectively, which cheques admittedly were returned dishonoured and notice having been issued to the accused, the accused received the same but failed to comply with it and as such the accused filed a complaint. The Complainant examined himself. 3. The case of the accused was that the accused had received a loan of Rs.70,000/- only by cheque dated 29-11-2001 against which the Complainant had obtained a pro note of the same date and the same was repaid by the accused. It was also the case of the accused that besides the said loan of Rs.70,000/-, he had not taken any amount from the Complainant and the cheque of Rs.1,00,000/- was taken by the Complainant apart from the promissory note and that the said cheque was only signed by him and six months later the Complainant informed him that he had misplaced the cheque of Rs.1,00,000/- and as such had issued a cheque of Rs.57,000/- without writing the name or date thereon and the said cheque of Rs.57,000/- was issued to the Complainant because the Complainant had informed him that that was the balance amount due by the accused to the Complainant under the said loan. The accused examined himself in support of his defence and also examined two witnesses in relation to the said loan of Rs.70,000/- i.e. DW2/Cipriano Costa and DW3/Silvestre Monteiro. The learned trial Court by the 3 impugned Judgment acquitted the accused. In acquitting the accused the learned trial Court referred to the case of Hiten P. Dalal v. Bratindranath Banerjee((2001) 6 SCC 16) and took note that the presumption available under Sections 138 and 139 of the said Act was mandatory. Nevertheless the same was rebuttable and rebuttal could be proved by preponderance of probabilities. The learned trial Court in coming to the conclusion that the accused had rebutted the presumption referred to the fact that the Complainant had received a pro note for a sum of Rs.70,000/- when the first loan of Rs.70,000/- was given by the Complainant to the accused and observed that in case the Complainant had obtained a pro note for Rs.70,000/-, the Complainant would have also obtained a pro note when Rs.2,50,000/- were allegedly advanced to the accused. It appears that the accused had filed police complaints against the Complainant as well as to other authorities and the police had submitted a report. The learned Magistrate also took note of the said police report and observed that in case the Complainant had advanced a sum of Rs.2,50,000/- to the accused a mention of it would have been found on the said police report. As far as the first loan is concerned of Rs.70,000/- given by the Complainant to the accused vide cheque dated 29-11-2001, there could be no dispute that the same has been repaid by the accused to the Complainant and this is evident from a copy of the receipt dated 7-7-2003 which was shown by the Complainant to the accused in which the accused had admitted that last instalment of the said loan was paid by the Complainant to the accused on 7-7-2003, and, even then it appears that there is a 4 dispute between the Complainant and the accused whether it was the last instalment of the principal amount due or whether it included the interest payable as well, since subsequently inspite of the said receipt a further sum of Rs.10,000/- was being demanded by the Complainant and which according to the accused was paid by him to the said Complainant. The Complainant's case is that he had given a loan of Rs.2,50,000/- on 25-5-2002 but there is no explanation from the Complainant as to why the accused had to give two separate cheques of the same date without any further explanation from the Complainant as to why another cheque was not given for the balance amount of Rs.23,000/-. The plea taken by the accused and substantiated by him by his own evidence that appears to be more probable i.e. the accused had given the second cheque when the Complainant had told him that the first cheque of Rs.1,00,000/- was misplaced. It is to be noted that rebuttal of the presumption can be done by an accused not only by leading his own evidence but also by seeking admissions from the Complainant as well as by the circumstances proved in the case. It was thereafter for the Complainant to have proved that in fact he had lent a sum of Rs.12,50,000/- to the accused. The learned trial Court was certainly justified in not accepting the said claim of the Complainant. A person who had taken a pro note from the accused for Rs.70,000/- and subsequently written a receipt for the discharge of the liability would have certainly also taken a pro note for a large sum of Rs.2,50,000/- apart from the fact that the said amount also did not figure in the police report. 5 4. The view by the learned trial Court is a plausible view and therefore cannot be interfered in appeal. This is not a fit case to grant leave to appeal. Application dismissed. N. A. BRITTO, J. RD