1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 193 OF 2009 Mr. Camilo Miranda, son of Mr. Luis Miranda, 45 years of age, Resident of H. No.148, Vidhyanagar Borda, Margao, Goa. ... Applicant versus 1. Mr. Ulhas alias Balkrishna V. Falary, son of Mr. Vaman Fallary, 56 years of age, resident of House No.20, Cine Vishant Road, Malbhat, Margao, Goa. 2. State of Goa through Public Prosecutor, Panaji, Goa. ... Respondent Shri Valmiki Menezes, Advocate for the Applicant. CORAM : N. A. BRITTO, J. DATE : 14TH JULY, 2009. ORAL ORDER Heard. 2. The complainant seeks leave to appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 by Judgment dated 6-3-2009 of the learned Additional Sessions Judge, Margao. 2 3. The Respondent/Accused was earlier convicted by Judgment dated 15-12-2008 of the learned J.M.F.C., Margao. 4. The complainant and the accused are businessman and were good friends for more than five years. The complainant had given a loan of Rs.1,25,000/- to the accused under a written agreement on or about 3-9-2003 and on account of non payment a suit for recovery of the same is pending between the parties. 5. The complaint was filed with the allegation that the accused had approached the complainant for a loan of Rs.1,80,000/- with a promise to pay the same together with interest, at the end of March, 2002, and towards security the accused had given the subject cheque, namely the cheque dated 3-4-2002 for Rs.1,80,000/- drawn on Goa State Co-operative Bank Ltd., Margao, in favour of the complainant. The cheque, when presented for payment was returned for insufficient funds. The complainant sent a statutory notice but it was returned unclaimed. The complaint was thereafter filed and in support of it, the complainant examined himself. The accused also gave his evidence and it was the defence of the accused that the subject cheque was stolen from his shop. It was also his case that he had not borrowed the said sum of Rs.1,80,000/- as was alleged and he had also not issued the cheque to the complainant. 3 6. The learned trial Court convicted the accused and in doing so, disbelieved the defence of the accused observing that if any cheque was stolen by someone the normal reaction of the person whose cheque was stolen would have been to lodge a complaint or at least to issue stop payment instructions to the Bank and in the absence of any complaint to the Police and the stop payment instructions, it was difficult to accept the case of the accused that the cheque was stolen and moreover the accused had not stated where exactly was his shop, and where exactly the cheque was kept. The learned trial Court also found that non sending of any reply to the statutory notice was also a fact which went against the accused. 7. The learned first appellate Court on considering the evidence of the complainant and the accused noted that the complainant had admitted that the blanks in the subject cheque were in different ink then the ink used in signing the cheque by the accused. The learned first appellate Court noted that the accused had also suggested to the complainant that the said blank cheque was filled by the complainant and since the ink used for making the signature and filling of the blanks was different, the possibility of the complainant filling the blanks cannot be ruled out, and, therefore the complainant ought to have proved by cogent evidence that he had advanced the amount of Rs.1,80,000/- to the accused and also the handwriting in the cheque was that of the accused. 8. There is no doubt that the subject cheque was signed by the accused and as such there was a presumption available in favour of the complainant in 4 terms of Sections 118 and 139 of the Negotiable Instruments Act, 1881 that the said cheque was issued for the discharge of a debt or liability repayable to the complainant. However, the said presumption was rebuttable and could be rebutted by the accused by his own evidence or that of the complainant by bringing out circumstances from the evidence of the complainant which would be sufficient to demolish the fact which was to be presumed under Section 139 of the Act. No doubt, the learned J.M.F.C. considered some of the circumstances against the accused but left out more weightier ones, which have been rightly considered by the learned Sessions Judge. The Apex Court in Mallavarapu Kasivisweshwara Rao v. Thadikonda Ramulu Firm and others(2008(7) SCC 655) has held that the initial burden is on the defendant to show that the consideration was improbable and this burden, the accused had amply discharged by his own evidence and from the fact that the body of the cheque was not written by the accused. This threw great amount of doubt on the veracity of the case of the complainant that the subject cheque was given towards the repayment of the loan of Rs.1,80,000/- taken by the accused from the complainant and being so it was then entirely upon the complainant to prove that indeed the accused had taken the loan of Rs.1,08,000/-. Secondly, in the complaint, the complainant made a bare statement that the subject cheque was given towards the loan of Rs.1,80,000/- which was repayable with interest. However, it can be seen from the cross- examination of the complainant that the loan amount was disbursed, according to the complainant, on three occasions i.e. in the first, second and last week of February, 2004, and the cheque was given when the third instalment of 5 Rs.60,000/- was paid to the accused. The cheque is dated 3-4-2004. It is difficult to believe that the complainant who entered into a written agreement with the accused when he lent a sum of Rs.1,25,000/- on 3-9-2003 would have parted with different sums of money on different dates without obtaining any document. The learned first appellate Court, therefore held, and, in my view rightly, that the complainant had not produced any document to support the alleged advance. The learned first appellate Court also noted that the evidence raised doubt about the cheque whether the same was filled by the accused. Moreover, the cheque also did not include the amount of interest which the accused was alleged to have agreed to pay to the complainant. 9. The view held by the learned first appellate Court is a plausible view arrived at from the evidence on record. In my view, this is not a fit case to grant leave to appeal. Application therefore is rejected. N. A. BRITTO, J. RD