1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 155 OF 2008 Shri Jitendra Haldankar .... Applicant V/s Shri Girish Mahale & Anr. .... Respondents Mr. M.S. Usgaonkar, Senior Advocate with Mr. S. Mahambrey, Advocate for the Applicant. CORAM : N.A. BRITTO, J. DATE : 16th SEPTEMBER, 2008. ORAL ORDER : Heard Shri Usgaonkar, the learned Senior Counsel on behalf of the applicant, who is the complainant in Criminal Case No. OA/834/2001/C. 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 31/03/2008. 3. The case of the complainant was that the complainant had advanced to the accused the sum of Rs. 80,000/- in cash and towards repayment of the same had issued cheque bearing no. 1083036 dated 27/09/2001 for Rs. 80,000/- drawn on Goa Urban Co-operative Bank Ltd., Panaji and the said cheque when presented for payment on 28/09/2001, it was returned dishonoured with endorsement that the funds were not arranged for and, as 2 such, the complainant on 4/10/2001 sent a demand notice to the accused calling upon him to make the payment within 15 days from the receipt of the notice. The accused received the notice and not only that, replied to the same, a fact which the complainant chose not to mention in the complaint. The complainant had examined himself in support of the complaint. The accused on the other hand, right from the reply filed, as well as in his evidence given in Court, has stated that he had lost two cheques bearing nos. 1083036 and 1083037 and both the said cheques were lost by him in blank and when he realised, he had spared no efforts to trace the same and upon his failure to find the said cheques he had instructed his Bank, the said Goa Urban Co-operative Bank Ltd. on 18/12/1999 to stop payment of the same and that the story that the complainant had advanced the loan of Rs. 80,000/- to him in the first week of March, 2001 and that he had issued the subject cheque, was a false story to extract money from him. The accused had also examined his Bank Manager, who pursuant to the letter of the accused dated 15/07/2002 had written a letter dated 23/07/2002 confirming that the Bank had received instructions to stop payment in respect of the said cheques on 18/12/1999. 4. The learned trial Court has come to the conclusion that the evidence produced by the complainant did not show that the complainant had advanced an amount of Rs. 80,000/- to the accused and the presumption in favour of 3 the complainant is satisfactorily rebutted by the accused by producing sufficient evidence through himself and the Bank Manager. 5. Shri Usgaonkar, the learned Senior Counsel on behalf of the complainant submits that the primary document namely the letter written by the accused on 18/12/1999 was not produced and, as such, it could not be said that the presumption available to the complainant was rebutted by the accused. Learned Senior Counsel further submits that the cheque return memo shows that the subject cheque was returned not because the Bank had obtained stop payment instructions but for "not arranged for". 6. There is no doubt that the complainant has in his favour presumptions which are available to him under Section 118 as well as Section 139 of the Act that the cheque was issued for discharge, in whole or in part, of any debt or other liability. It is also well settled that the said presumptions are rebuttable and can be rebutted with the help of the evidence of the complainant or by the accused giving evidence of his own and by the standard of balance of probabilities. In the case at hand, the accused had taken a consistent stand first by replying to the statutory notice of the complainant and then stepping in the witness box and thereafter examining the Bank Manager in support of his case that he had lost the subject cheque along with another and on that count he had issued instructions to his Banker 4 on 18/12/1999, a fact which has been sufficiently proved by examining the said Bank Manager. It is true that the original of the said letter dated 18/12/1999 was not produced by the Bank Manager but he had given sufficient explanation for its non-production and had further stated that he had verified the records and registers and the said letter was mentioned on the register and he could not produce the said register because no records were retained for a period of more than 5 years. There was no cross-examination of the said Bank Manager, on behalf of the complainant as regards the cheque return memo or reason for dishonour. The learned trial Court had accepted the evidence of the said Bank Manager and I do not see any reason why the Bank Manager should have come to support the case of his customer in case no instructions were given to them to stop payment of the subject cheque on 18/12/1999. In the light of the consistent stand taken by the accused that he had lost the subject cheque and on that count had informed the Bank to stop the payment, the presumptions available to the complainant that the subject cheque was issued on 27/09/2001 was sufficiently rebutted. It cannot be conceived that the complainant would ask the Bank to stop payment on 18/12/1999 and then issue cheque on 27/09/2001. 7. After having rebutted the said presumptions it was for the complainant to have proved that indeed he had lent a sum of Rs. 80,000/- to the accused. It was not the case of the complainant that money was advanced against 5 cheque. The case of complainant was that money was advanced in first week of March and cheque was issued on 27/09/2001. The learned trial Court has considered the evidence of the complainant and the said evidence shows that it is the complainant who was taking loans from different institutions and therefore it was difficult to accept that he was in a position to lend a sum of Rs. 80,000/- to the accused. 7. Considering the above, the acquittal of the accused under Section 138 of the Act could not be faulted. This is not a fit case to grant special leave to appeal. Application dismissed. N.A. BRITTO, J. NH/-