1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.45 OF 2008 Nishith M.P. Verlekar, Proprietor of Tanay Air Travel, Opp. Corporation Bank, Tali Wada, Mapusa, Goa. .. Appellant V/s. Ashpaque Marfani, Proprietor of 'Mustafa' Collection, Opp. Navtara Hotel, Municipal Market area, Panaji, Goa 403 001. .. Respondent Mr. S.G. Bhobe, Advocate for the appellant. Mr. Umesh Rao, Advocate for the respondent. CORAM: N. A. BRITTO, J. DATE: 11TH AUGUST, 2009. ORAL JUDGMENT 1. This is complainant's appeal and is directed against judgment dated 13.3.08, acquitting the accused under section 138 of the Negotiable Instruments Act, 1881. 2 2. The case of the complainant is that the complainant and the accused are businessmen and the accused in discharge of his liability had issued to the complainant cheque no.45700 dated 7.6.06 for Rs. 50,000/- drawn on Bicholim Urban Co.operative Bank Ltd., and when the said cheque was deposited by the complainant in his Bank, the same was returned on 22.6.06 with a remark that the funds were insufficient. 3. The complainant sent a legal notice dated 23.6.06 calling upon the accused to make the payment within fifteen days. The accused received the same on 24.6.06 but did not make the payment as required. The complainant, therefore, filed the complaint on 14.7.06. The complainant examined himself in support of his case. 4. The case of the accused is that he had taken a loan from the complainant and had given a blank cheque as security, but he had paid the amount to the complainant with interest. The accused stated that he had not received the notice. The accused examined himself and another witness to support his case. The other witness was examined by the accused to show that the complainant was a money lender. 3 5. The Learned trial Court, as far as the service of notice is concerned held that the accused had received the said notice as it was delivered at the shop of the accused, opposite Navtara Hotel at Panjim. The Learned trial Court also held that the accused had failed to prove that the accused had not received the said notice and on the contrary it was proved by the complainant by examining the postman that the notice was served. The Learned trial Court further held that the complainant was a money lender relying on the very statement of the accused, as fortified by the evidence of Dw2 Aronmoses Grimuditch. 6. The complainant in his evidence had stated that he was having a travel agency under the name of Tanay Air Travel located a Tali vaddo, Mapusa. He had further stated that he had given an amount of Rs.35,000/- by a bearer cheque and in support of that statement the complainant had produced a certificate from the Bank dated 16.9.06 to prove the fact of payment of money by the bearer cheque. The complainant had further stated that he had paid another sum of Rs. 15,000/- by cash. The complainant had also stated that towards the said repayment the accused had given the cheque in question which he had 4 deposited on 13.6.06 but was returned unpaid on 22.6.06 with a remark that the funds were insufficient. In cross-examination he had denied that the cheque in question was given by the accused as security. There was no further cross-examination of the complainant worth taking note of. 7. The accused, in his evidence, had stated that he had borrowed a sum of Rs.50,000/- from the complainant with interest at the rate of 5% per month and at the time of borrowing the said amount, at the request of the complainant, he had kept the cheque in question in blank as security. In fact there was no cross-examination at all of the complainant whether the complainant had completed the cheque, in case it was blank. The accused had stated that thereafter he had paid the entire amount with interest to the complainant and had requested him to return the blank cheque. On this aspect also there was no cross-examination of the complainant. The accused had further stated that on account of friendly relations which the accused had with the complainant, he did not bother about the said cheque although he had reminded the complainant once or twice to return the cheque and every time the complainant pretended as not to remember where he had kept the said cheque. If that was so, and in case the complainant, had not returned the cheque as required by the 5 accused, the accused as a prudent businessman ought to have issued instructions to his Bank not to honour the same in case it was presented. In cross-examination the accused admitted having withdrawn a sum of Rs.35,000/- from the account of the complainant but stated that he had withdrawn the said amount and handed over to the complainant. Further, in cross-examination the accused stated that he had paid the entire amount to the complainant. He had further stated that he had a book to show that he had returned the amount to the complainant. The accused denied the suggestion that he had no book to show that he had paid the amount to the complainant. Similarly, the accused denied that the accused had filed a false affidavit in evidence. 8. Shri Bhobe, Learned Counsel appearing on behalf of the complainant submits that this is a case where the accused has admitted receiving a sum of Rs.50,000/- from the complainant but claims that he has paid the same and forgotten to collect the cheque given by the accused. Learned Counsel submits that once the loan was admitted, it was entirely for the accused to prove that he had paid back the loan amount and this burden was entirely on the accused which the accused 6 failed to discharge. Learned Counsel further submits that the accused did not even specify the date on which the loan taken was repaid in as much as the accused also did not reply to the demand notice sent by the complainant to the accused. 9. Shri Rao, the Learned Counsel appearing on behalf of the accused, has submitted that the subject cheque was given as security and it is the accused who had forgotten to collect it from the complainant after the repayment of the advance taken by him. Learned Counsel further submits that the book showing repayment was produced by the accused in two other cases which were subject matter of Criminal cases no. 532/P/2006/C and 490/P/2006/C from which the present complainant had filed appeals being Criminal Appeals no.73 of 2007 and 74 of 2007 which were dismissed by this Court by Judgment dated 8.12.08 and in support of the said submission Learned Counsel has placed on record a copy of an unreported Judgment of this Court in the said two appeals. 10. A reading of the said Judgment dated 8.12.2008 shows that Criminal Case No.490/P/2006/C was filed with allegation that the 7 accused had issued in favour of the complainant a cheque dated 25.5.06 in the sum of Rs.1,00,000/- and Criminal Case No.532/P/2006/C was filed with allegation that the accused had issued a cheque dated 10.6.06 in the sum of Rs.2,15,000/-. This Court observed that once the accused pleaded not guilty, it was expected from the complainant to state in examination-in-chief as to what was the nature of the debt or liability for which the cheque was issued. This Court further observed that the complainant had not stated in his evidence as to the date on which the complainant advanced the amounts mentioned in the cheques. Further, the Court observed that the evidence of the complainant himself disclosed that at the relevant time he was not paying income tax although at some prior point of time, he was paying income tax. This Court, therefore, proceeded to hold that it found difficult to accept the version of the complainant that within a period of fifteen days the complainant was in a position to advance the loan of Rs. 3,55,000/- to the accused. 11. Shri Bhobe, the Learned Counsel on behalf of the complainant points out that the accused had deposed in those cases on oath that the accused had taken Rs.50,000/- on two occasions from the 8 complainant and had issued the cheques signed by him by way of security and that the accused had also stated that he had repaid the entire amount to the complainant. 12. This Court had further observed that it was not the case of the complainant that the complainant has advanced the cheque amount to the accused by way of cheques and therefore the version of the accused that the accused had repaid the amount taken by him on two occasions and that he had given two cheques by way of security cannot be just brushed aside. This Court held that the accused by leading his own evidence has discharged the burden u/s. 139 of the Negotiable Instruments Act. This Court had also observed that the amounts and signatures on the two cheques were in different handwritings which supported the defence taken by the accused that he had taken the amount of Rs.50,000/- each on two occasions from the complainant and had repaid the same. This Court therefore, held that the probabilities of the case disclosed that the complainant was not in a position to advance large sums of money which had to be taken into consideration whilst considering whether the accused had discharged the burden cast on him 9 under section 139 of the Act. 13. In my view, the findings of the Learned Magistrate and that of this Court in the said unreported Judgment dated 8.12.08 cannot come to the assistance of the accused in this case. It is not the case of the accused in this case that he had taken Rs.50,000/- on two occasions from the complainant and had repaid the same. This only shows that the accused has no consistent story to tell and this also can be gathered from the fact that the accused also stated that the amount of Rs. 35,000/- received by him by cheque was returned by him to the complainant which contradicts his own story that he had obtained a loan of Rs. 50,000/- and then had repaid it. 14. One does not know why the complainant as well as the accused did not take steps to ensure that all the cases were tried by the same court and at the same time. One of the considerations which weigh with this Court in the Judgment dated 8.12.08 is that the complainant could not have advanced a sum of Rs.3,55,000/- to the accused within a period of fifteen days and that too in cash and that is not the 10 case herein. As rightly submitted by Shri Bhobe, the Learned Counsel on behalf of the complainant, the accused has admitted having received from the complainant the sum of Rs.50,000/- but claims that the same has been repaid and therefore the entire onus was on the accused to prove the repayment. There is nothing in the Judgment dated 8.12.08 to show that the accused had produced any book showing the repayment to the complainant. In this case the accused admitted that he had a book but did not produce the same and therefore an adverse inference has got to be drawn against the accused. The accused was specifically questioned on the said book in this case and therefore ought to have produced the same in this case. A bare self serving statement of the accused was not sufficient to prove that the accused had paid the amount. The accused had received part of the amount in cheque and therefore could have always repaid the amount by cheque. The accused having admitted that he had received a sum of Rs.50,000/- from the complainant and having failed to prove that he had repaid the same there was no other option but to convict the accused under section 138 of the said Act. 11 15. As regards service of notice, Learned Counsel submits that the A/D card produced by the complainant shows that it was signed by one Linda and not by the accused. In the said Judgment dated 8.12.08 this Court observed that notices were issued at the correct address where the accused was carrying on business and the said notices were signed by one Joanita and Linda and in that background, the complainant could not be expected to lead evidence that the said Linda and Joanita were in the service of the accused at the relevant time. The Learned trial Court held that the accused had not disputed that he did not have a shop opposite Navtara Hotel and further held , and in my view rightly, when the demand notice was issued on the correct address of the accused that it is deemed to have been served unless contrary was proved, as provided by section 27 of the General Clauses Ac, 1887. The presumption arising therefrom cannot be rebutted by the bare self serving statement of the accused alone. In this case the complainant has also examined the postman to show that the notice was delivered at the said address. The postman certainly could not be expected to remember, with the passage of time, whether he had taken the signature of the accused or some other employee. He had stated that he had delivered the two letters to the 12 accused in his shop opposite Navtara on 24.6.06 and had further stated that he had taken signature on the forms which they carry to deliver registered letters with acknowledgement due. This Court in M/s. Polytronic Corporation V/s. M/s. Tukaram S. Loliencar unreported Judgment dated 1.4.09 in Appeal from Order No.100 of 2008, stated as follows:- "The decision of the Apex Court on which reliance was placed by the Learned trial Court in the case of Gujarat Electricity Board and another V/s. Atmaram Sungomal Poshani (supra) is quite clear. That was a case where an affidavit in rejoinder was filed wherein it was denied that the registered letter was not tendered to the respondent and the postal endorsement was wrong and incorrect. The Hon'ble Supreme Court observed that there is a presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before 13 the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. This Court has earlier held that a bare denial or a bare assertion by the party concerned without anything more or any further evidence that the party concerned had not received the registered article is not sufficient to rebut the presumption. In other words, a self serving statement on oath that the registered article was not received or a bare denial or assertion that it was not received by a person who stands to profit by his denial or assertion would not be sufficient to warrant the rebuttal of the presumption". 16. In the light of the above, the contention that the accused was not served was rightly rejected by the Learned trial Court. 14 17. Coming to the allegations that the complainant was a money lender, Shri Rao submits that considering that there were three instances, one in this case and the other two in the cases decided by this Court by Judgment dated 8.12.08 the complainant had got to be considered to be a money lender and in support of the said submission Shri Rao has placed reliance on the case of M/s. Krishnam Raju Finances V/s. Abida Sultana and another {2005 (1) Crimes 251}. On the other hand Shri Bhobe submits that there was no cross examination of the complainant to demonstrate that the complainant was a money lender. Learned Counsel further submits that to prove that the complainant was a money lender the accused brought the said Aronmoses as his witness but failed to prove the same. 18. Shri Bhobe has placed reliance on the decision of this Court in Amstrong Builders and Developers V/s. Vishvanath Naik { 2007 (1) Mh. L. J.}, wherein it was stated as follows:- "The complainant was also cross-examined on the aspect of money lending. In fact in the cross-examination of the complainant it 15 was impliedly admitted that the amount which was advanced to the accused was not connected with the business of the accused, the complainant's business being that of a builder and developer. The complainant had categorically stated that he was not a money lender nor did he have license to lend money. Picking up the expression from para 3 of the complaint, that the complainant had given a loan to the accused, learned Counsel on behalf of the accused, submits that such a loan was not recoverable in the light of the provisions of the Goa Money Lenders Act, 2001. The learned Counsel on behalf of the accused has particularly referred to the expression activity in sub-clause (a) of Clause (1) of section 2 of the said Act and has submitted that even a single loan would come within the purview of the expression "activity" appearing in the said sub-clause (a) of Clause (1) of section 2 of the Act. Apart from the denial by the complainant that he is the money lender, the accused produced no evidence to bring on record to show that 16 the complainant was carrying on business of money lending or any activity of lending of any finance. The expression "activity" is not defined under the said Act and the ordinary dictionary meaning as per Black's Law Dictionary activity is an occupation or pursuit in which a person is active, and, as per Oxford English Dictionary, it is the condition in which things are happening or being done. In other words, the very subject of activity suggests continuity and therefore a single act of giving a loan would not come within the definition of sub-clause (a) of clause (1) of section 2 of the said Act. In this context, reference to the case of Rotakonda Raghu Naidu Vs. Kolla S. Prasad, 2004 (4) Crimes 295 could be made. The learned Single Judge of the Andhra Pradesh High Court referring to another decision of the Division Bench of that Court observed that "money lender" envisages only those persons whose regular business is to advance monies and not those who advance monies casually. A solitary instance of giving a loan does not make a 17 person a money lender. That being the position, the provisions of the Goa Money Lenders Act, 2001 would be of no assistance to the case of the accused". 19. As already stated, the complainant was not cross examined at all to show that besides the accused he had advanced any sums of money to other persons. Besides, the conclusion in Judgment dated 8.12.08 is that no money was lent. The complainant has stated in cross- examination that he did not have a money lender's license. A bare suggestion put to the complainant was denied by the complainant i.e. that he was doing money lending business. On the contrary, the complainant had stated that he had advanced the said amount to the accused by way of a friendly financial loan. The accused in his evidence stated that the complainant was a money lender. The witness of the accused the said Shri Aronmoses also stated that the complainant was a professional money lender and further stated that he had borrowed a sum of Rs.1,00,000/- in cash from the complainant who at that time had taken two blank cheques drawn on ICICI Bank Ltd., Panaji. However, in cross examination, the said witness was shown receipts cum statements by 18 which he was compelled to admit that the sum of Rs.1,00,000/- which was taken by the complainant was towards a land deal to be finalized. It is, therefore, obvious that the accused had not been able to prove that the complainant was a money lender who would not have been in a position to recover the money advanced, not having a license, as required under the Goa Money Lenders Act, 2001. 20. The Learned trial Court also held that the complainant had not produced any documents to show that the complainant was a proprietor of the proprietorship concern named and styled as Tanay Air Travel. The complainant had filed the complaint in his name, as proprietor of the said Tanay Air Travel. The notice sent to the accused was sent in the name of the complainant as proprietor of the said Tanai Air Travel. The cheque was given by the accused in the name of Tanay Air Travel. At no stage, did the accused dispute, either giving of the cheque or the same having not been given to Tanay Air Travel or that the complainant was not the proprietor of the said business concern. Being so, the Learned trial Court was not right in concluding that the complainant had not proved the relationship between the complainant 19 and the said Tanay Air Travel. The said Tanay Air Travel was nothing but a name of business carried out by the complainant and it is nobody's case that it had a separate legal entity, other than that of the complainant. 21. Shri Rao has placed reliance on the case of Mr. Chico Ursula D'Souza V/s. M/s. Goa Plast Pvt. Ltd. {2008 (2) Goa L.T. 226} and has submitted that the pesumption available to the complainant was sufficiently rebutted. In my view, the accused can get no benefit from the said Judgment. This is a case where there was no scope for any presumption because the loan was admitted by the accused but the contention was that it was repaid and the cheque in question had remained with the complainant which the complainant misused. This contention has already been dealt with hereinabove. It may be reiterated that the accused as a prudent businessman would have obtained the cheque from the complainant at the time of payment and in case the complainant had not returned the same to him inspite of asking several times the accused would have instructed his bank not to honour the same, if presented for payment. The accused also did not produce any book of 20 account to show the payment. One also fails to understand why the accused who received part of the loan in cheque ought to have made repayment of the loan in cash. The entire onus was on the accused to prove repayment, and considering the facts and circumstances of the case, in my view, the accused had failed to discharge the said onus. 22. Consequently, the appeal is allowed, the impugned Judgment is set aside and the accused is hereby held guilty under section 138 of the Negotiable Instruments Act, 1881. 23. At the request of Shri Rao, S.O. 12.8.2009 at 2.30 pm. N. A. BRITTO, J oc. CORAM: N. A. BRITTO, J. DATE: 12TH AUGUST, 2009. JUDGMENT CONTINUED 21 24. Shri Rao on behalf of the accused submits that the accused has not remained present today because he is out of station. Shri Rao further submits that the accused has two children to look after and presently he is out of business even having lost the shop he was running. Counsel on behalf of the complainant submits that the accused is not present in the Court even to concede in favour of the accused that only a nominal sentence of imprisonment till rising of the Court be imposed upon him. Learned Counsel further submits that the accused deprived the complainant of Rs.50,000/- for over three years, three