1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 26 OF 2007 Priya Bhobe, R/o. Flat Nos. 1 & 2, Building no.8, Model Residency, St. Inez, Panaji, Goa. .. Appellant v/s. 1. Speer Finance Pvt. Ltd., Registered Company under Companies Act, 1956, having its registered office at Nivedita Collection, 8, Cedemer, S.V. Road, Panaji, Goa. 2. Mr. Shrikant Gawda, S/o. Shanker Gawda, aged 48 years, married, R/o. Taliegao, Goa. 3. Mrs. Manisha Gawda, w/o. Shrikant Gawda, Age 38 years, married, Businesswomen, R/o. Taleigao, Goa. 4. State, (Through Public Prosecutor) .. Respondents 2 Shri S. G. Bhobe, Advocate for the Appellant. Shri Ryan Menezes, holding for Shri S. Samant, Advocate for the respondents no. 1 to 3. Ms. Winnie Coutinho, Public Prosecutor for the respondent no.4. CORAM: N. A. BRITTO, J. DATE : 1ST SEPTEMBER, 2009. ORAL JUDGMENT 1. This is complainant's appeal and is directed against Judgment dated 16.10.2006 of the Learned Additional Sessions Judge, Panaji, acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881. 2. Heard Shri S.G. Bhobe, Learned Counsel on behalf of the complainant. The complaint was filed with the allegation that accused no.1 is a company of which accused nos. 2 and 3 were Directors who were in overall control of accused no.1-company and were jointly and severally liable for the liabilities of the company. The complainant had stated that the accused owed to the complainant a sum of Rs.3,40,000/- 3 and towards the payment of the same the accused had given to the complainant the subject cheque dated 3.8.01 in the sum of Rs.3,40,000/- drawn on the Mapusa Urban Co-operative Bank Ltd. which cheque when presented by the complainant for payment was returned dishonoured on the ground of insufficient funds. The complainant sent a notice to the accused dated 13.8.01 calling upon the accused to make the payment of the said amount of Rs.3,40,000/- within fifteen days which was received by the accused but was not complied with and as such the complaint came to be filed against the accused on 21.9.01 and the complainant examined herself in support of the same. 3. None of the accused stepped in the witness box and it was their case taken in cross examination, that the subject cheque was stolen by the complainant as the complainant was occupying the office premises of the accused and moreover it was further stated that the signature of accused no.3 was forged by the complainant. 4. Initially, the accused appear to have been sentenced by the Learned trial Court to simple imprisonment of a period of six months 4 under section 138 of the said Act and also were directed to pay to the complainant a sum of Rs.6,80,000/- by way of compensation being twice the amount of the cheque and in default were directed to undergo simple imprisonment for a period of six months. In fact it appears that the Learned J.M.F.C who convicted and sentenced the accused aforesaid did not even notice that the accused no.1 was a company which could not be sentenced to imprisonment. 5. Be that as it may, the accused filed an appeal before the Court of Sessions and the Learned Additional Sessions Judge, was pleased to allow the appeal by the impugned Judgment and in allowing the said appeal, the Learned Additional Sessions Judge came to the conclusion that the complainant had miserably failed to establish the transaction itself between the complainant and the other accused. The Learned Additional Sessions Judge further held that the accused having taken a stand/plea that the cheque was not issued for the discharge of a legally enforceable debt or liability, it was upon the complainant to prove the circumstances under which the cheque was given in her favour and the same was issued in discharge of a legally enforceable debt, and, therefore 5 unless this initial burden was discharged by the complainant, presumptions available under Section 139 of the Act could not be made use against the respondents. The Learned Additional Sessions Judge also noted that the Learned trial Court while appreciating the evidence of the complainant did not take into consideration the admissions of the complainant and failure of the complainant in crossing the first hurdle in establishing that there was any transaction between the complainant and the accused as averred in the complaint and the complainant having failed to establish the said transaction there could not be any presumption under Section 139 of the Act. 6. Be that as it may, Shri Bhobe, Learned Counsel, appearing on behalf of the complainant, submits that both the defences taken by the accused that the subject cheque was stolen by the complainant from their office and that the signature thereon was forged having not been proved, there was no other option but to raise the presumptions available to the complainant in terms of the relevant provisions of the Act and on the basis of the same, held the accused guilty u/s. 138 of the Act as was done by the Learned Magistrate. Learned Counsel has further submitted 6 that the accused had also not given reply to the demand notice sent by the complainant and therefore that fact also ought to have been considered by the Learned Additional Sessions Judge. 7. Admittedly, the cheque in question, was signed by A-3 on behalf of A-1. Admittedly also, the accused did not reply to the notice and that is one of the circumstance against the accused, but there are far too many against the complainant. By cross examination of the complainant, the accused had by ample measure discharged the initial burden that consideration was not only improbable but there was none. 8. The complainant filed the complaint with the allegations that it is the accused-company which owed a sum of Rs.3,40,000/- to the complainant and towards payment of the same that the subject cheque was given by the accused i.e. the company. The complainant filed the complaint against the accused nos. 2 and 3 because according to the complainant they were in overall control of the accused no.1-company, and, it was certainly not the case of the complainant that it is accused no.3 who was liable to pay the said sum of Rs.3,40,000/- to the 7 complainant and on that count, accused no.3 had issued the subject cheque on behalf of the accused no.1-company. 9. However, in cross examination, the complainant stated that she had not joined accused nos. 2 and 3 as Directors of accused no.1- company and further stated that the subject cheque was issued by the accused no.2 (it ought to have been accused no.3) and that the complaint was filed by the complainant because she had given the some money to the accused nos. 2 and 3. When the complainant was further questioned as to whether she had any proof to show that the sum of Rs.3,40,000/- was advanced to accused no.1, she replied stating that she had paid the amount of Rs.2,50,000/- to accused no.1 by a cross cheque dated 27.10.95 and Rs.90,000//- to accused no.1 in cash on 23.5.97 and she had documentary evidence to support the said statement. In support of the said statements she produced a xerox copy, without producing the original bank pass book, which showed that the sum of Rs.2,50,000/- was paid to accused no.3 on or about 4.11.95 and a Fixed Deposit Receipt in the name of her father-in-law Damodar A. Bhobe in the sum of Rs.90,000/-. First of all, it must be observed, that the said xerox 8 copy in the absence of production of the pass book, was clearly inadmissible in evidence. 10. Learned Counsel on behalf of the complainant, fairly concedes, that there is some prevarication in evidence of the complainant as compared to the complaint originally filed. In my view, there is no way in which the complainant could have succeeded. A reading of paras 2 and 3 of the com plaint clearly shows that it is A-1, the company, which owed to her a sum of Rs.3.40 lacs and towards payment of the same that the cheque was issued. That was her case in affidavit in evidence as well. However, in cross examination, the complainant stated that the legal liability towards the cheque was that of A-2 (should be A-3) and tried to prove the same by production of the xerox copy of the passbook and the fixed deposit receipt. It is a well settled preposition of criminal law that a complainant cannot be allowed to reconstruct a story different from the one propounded or pleaded in the complaint and that is exactly what the complainant was found doing in the evidence produced by her and on that count alone, her case ought to have been rejected. In other words, the case in the complaint was that the money was advanced 9 to A-1, the company which has its own distinct identity and on whose behalfs the cheque was issued. In the evidence, the complainant has tried to depose that the liability was that of A-3 Smt.Gawda. 11. That apart, the accused in cross examination, were able to create a doubt as to the existence of consideration that it was improbable and therefore it was for the complainant to prove that the subject cheque was issued towards debt or liability which either of the accused had towards her, which the complainant had failed to prove. As already sated, the xerox copy of bank passbook, was clearly inadmissible. Rs.90,000/- were paid by her father-in-law for which he was issued a F.D.R. Further, the complainant had admitted that the liability was of the year 1995 and there was no written acknowledgment from that year. If that was so, the cheque given in the year 2001, was given towards a time barred debt and therefore the accused had not committed any offence (See Ashwini Bhat {2005 (5) Bom C.R. 9} 12. In the light of the above discussion, acquittal of the accused by the Learned Additional Sessions Judge, could not be faulted. There is no 10 merit in this appeal and consequently the same is hereby dismissed. (N. A. BRITTO), J. oc.