1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 35 OF 2007 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 113 OF 2009 Shri Anthony Pereira R/o Vaddi, Merces, Tiswadi Goa. ... Appellant versus Dr. Raghunath P. Sinarai R/o H. No.E-186, Fondvem, Ribandar Tiswadi Goa 403 006. ... Respondent Shri S. D. Padiyar, Advocate for the Appellant. Shri V. P. Thali, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 30TH MARCH, 2009. ORAL JUDGMENT This is Complainant's appeal and is directed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881(Act, for short) by Judgment/Order dated 12-2-2007 of the learned J.M.F.C., Panaji. 2 2. The case of the Complainant, in brief, was that the Complainant had lent a sum of Rs.1,60,000/-, [Rs.1,00,000/- by cheque dated 19-1-1999 and Rs.60,000/- by cash], and the accused towards repayment of the same had issued to the Complainant a cheque in the sum of Rs.1,60,000/- dated 30-9-2000 which cheque when presented for payment was returned dishonoured as the payment was stopped by the drawer. The Complainant sent demand notice to the accused dated 23-3-2001 calling upon the accused to pay the sum of Rs.1,60,000/- within 15 days which notice was returned as unclaimed. The Complainant therefore filed a complaint on or about 8-7-2001 against the accused under Section 138 of the said Act, and in support of the same examined himself. 3. On the other hand, the case of the accused was that he did not receive any notice. It was further the case of the accused that an advertisement had appeared in a local newspaper stating that finance was available and contact number was given of one Surendra Prabhu and the accused after contacting him was directed to approach the Complainant as the Complainant was in need of Rs. 1,00,000/- for his mushroom project and thereafter the Complainant lent to the accused a sum of Rs.1,00,000/- for a period of four months at interest of 7% per month or 84% per year and on 19-1-1999 the accused gave a signed blank post dated cheque to the Complainant drawn on Vysya Bank and two Rs.20/- stamp papers blank but signed bearing Nos. 5469 and 5470. As per the accused, the sum of Rs.1,00,000/- was paid to him on 22-1-1999 by cheque No.571180 dated 19-1-1999. The case of the accused was that the Complainant did not give him 3 Rs.60,000/- in cash and that thereafter on 20-2-1999 i.e. one month after the Complainant had lent him Rs.1,00,000/-, the accused gave to the Complainant Rs.7000/- as the first monthly interest amount at 7% per month, by cheque No.175519 drawn on Goa State Co-operative Bank, Panaji, but the Complainant did not give him any receipt. The accused also gave details of further payments made by him to the Complainant, the details of which can be seen at para 26 of the affidavit in evidence of the accused. In other words, although the case of the Complainant was that the said sum of Rs.1,60,000/- was advanced by the Complainant to the accused without payment of interest, it was the case of the accused that he had received only Rs.1,00,000/- from the Complainant, and towards the principal amount as well as the interest the accused had paid a sum of Rs.1,28,555/-. The accused examined one Damodar Prabhu who claimed to be a Financial Advisor to the Complainant as well as to the accused, and, who also stated that he had also taken three loans from the Complainant and as regards the said loans there were cases filed by the Complainant against him under Section 138 of the Act, and as regards the third loan the case was withdrawn after he had paid the amount to the Complainant. The accused had also examined one Rajan Chandreria who too claimed that he had borrowed a loan of Rs.70,000/- from the Complainant on payment of interest at the rate of 10% per month. There was also a case filed against him by the Complainant in respect of a cheque for a sum of Rs.1,57,000/-. He has also stated that he had paid the amount of Rs.70,000/- along with interest at the rate of 10% though in cross-examination he had admitted that he did not have any document to show that he had paid interest at the rate of 10%. 4 The accused had also examined one Yeshwant Mashelkar who also claimed to have obtained a loan of Rs.3,00,000/- from the Complainant, and against whom the Complainant had also filed a case under Section 138 of the Act. 3. The learned Magistrate(i.e. J.M.F.C.) after considering the evidence produced on behalf of the accused came to the conclusion that the Complainant was a money lender and the Complainant was doing business of money lending. The learned Magistrate also noted that the Complainant had admitted that the Complainant had not registered himself as a money lender, and as such was operating his money lending business in violation of Section 5 of the Goa Money Lenders Act, 2001 and relying on Section 14 of the Goa Money Lenders Act the learned Magistrate came to the conclusion that the debt was not legally enforceable and therefore the accused could not have been prosecuted under the said Act. The learned Magistrate also held that the accused had proved that he had taken a loan of Rs.1,00,000/- from the Complainant and that the Complainant charged the accused interest at an exorbitant rate of 10% per month without registering himself as a money lender. The learned Magistrate also noted that the Complainant had disputed the receipt of Rs.1,28,555/- from the accused by putting a vague suggestion during cross-examination and as such inference could be drawn that the accused had paid to the Complainant a sum of Rs.1,28,555/- by way of interest on the principal amount of Rs.1,00,000/- which the Complainant could not have done in law as he was not a registered money lender. In other words, it appears that the learned Magistrate has also accepted the version of the 5 accused, in preference to the version of the Complainant, that the former had paid an amount of Rs.1,28,555/- to the latter on the principal amount of Rs.1,00,000/- and as such also has proceeded to acquit the accused. 3. We could proceed on an assumption that Goa Money Lenders Act, 2001 came into force from 13-9-2001 as it was stipulated that it would come into force at once and it was assented by the Governor of Goa on that date. Whether it came into force on 13-9-2001 or 19-9-2001 is not at all of any importance, as contended on behalf of the accused and the Complainant, respectively. 4. Learned Counsel on behalf of the Complainant submits that the transaction pertained to a period much prior to coming into force of the said Act, and this aspect has not at all been considered by the learned trial Court as the complaint was filed much earlier i.e. on 8-5-2001. This controversy need not detain us for long as the Complainant has too many hurdles to cross over, assuming for a moment, the Complainant was right on that count. The complaint came to be dismissed or in other words the accused came to be acquitted not only because the Goa Money Lenders Act, 2001 was held to be applicable but also because considering the evidence produced the learned Magistrate has accepted the version of the accused that the accused had paid an amount of Rs.1,28,555/- as against the principal amount of Rs.1,00,000/-. 6 5. As already stated the case of the Complainant was that the said loan was given interest free, and that statement is hard to believe in the light of the facts stated by the accused and the other witnesses examined on behalf of the accused and particularly W-2/Rajan Chandreria who had also stated that he had taken a loan of Rs.70,000/- from the Complainant and paid to the Complainant interest at the rate of 10% per month. The averments of the accused of paras 12 and 13 were admitted by the Complainant in his cross-examination, namely as regards the fact that the accused had handed over to the Complainant two blank but signed papers only. The accused had also categorically stated, in para 18 of his affidavit in evidence that on 20-2-1999, exactly a month after the Complainant had lent him a sum of Rs.1,00,000/- he had paid to the Complainant a sum of Rs.7000/-, as the first monthly interest amount at 7% interest per month by cheque No.17559 drawn on Goa State Co-operative Bank, Panaji, and the Complainant had refused to give him a receipt for the said amount. Except for a vague denial that the said statement along with the statements made in the other paragraphs of the affidavit of evidence of the accused was false, no effort was made by the Complainant to disprove the said statements. The cross-examination of the Complainant as well as the accused has been very cryptic, no doubt, but when the accused had made such a categorical statement giving details of the payment made by him with reference to date, the cheque number and the amount it was expected from the Complainant to have sufficiently rebutted the said statement of the accused. True, as pointed out by learned Counsel on behalf of the Complainant no such plea was taken by the accused in the cross-examination of the Complainant, 7 as regards the said payment of Rs.7000/- by cheque dated 20-2-1999 but nevertheless the said statement in the context of other evidence led by the accused could not be disbelieved, and if the accused had proved by preponderance of probability and I have no hesitation to hold so, that he had paid an amount of Rs.7000/- towards interest or otherwise that would rebut the presumption that the cheque was issued towards a liability of Rs.1,60,000/- owed by the accused to the Complainant. Once, that was done, it was for the Complainant to prove that the Complainant had lent not only Rs.1,00,000/- by cheque but also Rs.60,000/- by cash. The Complainant, failed to prove, the latter payment. Looked from another angle, the subject cheque was for an amount more than due by the accused. In this context, this Court in Laxmikant D. Karmali v. Santosh V. Naik(2006(2) Bo.C.R.(Cri.) 830) held as follows:- “In other words, the suit cheques represent an amount of Rs.1.90 lakhs which was not at all the debt or the liability of the accused towards the complainant and, therefore, it could not be said that the suit cheques were issued by the accused to the complainant towards debt or a liability. It is well settled that when a cheque is for an amount more than due by the accused, section 138 of the Act is not attracted. In this context, reference could be made to a decision of this Court in (M/s. Pawan Enterprises v. Satish H. Verma), 2003 Bom.C.R.(Cri.) (N.B.) 474 : 2003 Cri.L.J. 2146 wherein the cheque was for an amount of Rs.17,745/- and it was undisputed that what was due by the accused was only Rs.10,975/- and, therefore, the Court held that it could 8 not be said that the cheque was issued for discharging the liability to the extent of Rs.17,745/- when what was due was only Rs.10,975/-”. 6. The learned Magistrate has accepted the version of the accused that the amount of Rs.1,28,555/- was paid by the accused to the Complainant and that also appears to be a plausible view of the matter and considering that, this is not a fit case to reverse the said finding. From whatever angle, one looks at the case of the Complainant, the same was bound to fail. 7. This appeal therefore is hereby dismissed with costs. In view of the finding given herein above, the application filed by the accused to produce additional evidence is rejected. N. A. BRITTO, J. RD