1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.48 OF 2008 Narendra Kenaudekar, major of age, businessman, Ex-employee of Canara Bank, married resident of House No.318, Dramapur, Salcette, Goa. .. Appellant V e r s u s 1. Sebastiao P. Pires, Major of age, son of Francis Xavier Pires, Married, Employee of Union Bank of India, r/o. House No.532/C, Dialgona, Salcete, Goa. 2. The STATE OF GOA, Through the Public Prosecutor, High Court, Altinho, Panaji, Goa. .. Respondents Mr. S. D. Lotlikar, Senior Advocate, with Mr. P.S. Lotlikar, for the appellant. Mr. S. S. Kakodkar, Advocate for the respondent no.1. CORAM: N. A. BRITTO, J. DATE: 10TH AUGUST, 2009 2 ORAL JUDGMENT 1. This is a complainant's appeal and is directed against the judgment dated 31.5.08 of the Learned Additional Sessions Judge, Margao, by which the accused has been acquitted under section 138 of the Negotiable Instruments Act, 1881. 2. The case of the complainant, in brief, is that the accused had borrowed a sum of Rs.55,500/- from the complainant and had issued to the complainant five cheques, the details of which are as follows:- Sr.No. Cheque No. Date Amount 1. 0330062 16.5.2005 Rs. 45,000/- 2. 0330070 16.5.2005 Rs. 500/- 3. 0330071 16.5.2005 Rs. 5,000/- 4. 0330074 16.5.2005 Rs. 3,000/- 5. 0330079 12.5.2005 Rs. 2,000/- Total Rs. 55,500/- 3. As per the complainant the said cheques were deposited by the 3 complainant on 8.7.05 only to be returned dishonoured with a remark that the funds were insufficient. The complainant, therefore, issued a notice to the accused dated 14.7.05 and as the accused did not comply with the same, the complaint was filed. The complainant examined himself in support of his complaint. 4. On the other hand, it was the case of the accused that the first cheque of Rs.45,000/- was given to the complainant as security on the condition that the same was to be deposited after a period of one year from the date the complainant had given a loan amount to him. It was further his case that the cheque of Rs.5,000/- was given to the complainant as the complainant needed the said amount to pay the Bank Manager so that the loan could be obtained. The cheque for Rs.500/- was given to the complainant for some miscellaneous work and the cheque for Rs.3,000/- was given to the complainant as he demanded the same for his services for obtaining the loan and the cheque for Rs.2,000/- was given to the complainant to meet further expenses. The accused examined himself in support of his case. 4 5. Admittedly, the cheques given by the accused were undated. The complainant and the accused were both Bank employees. The complainant had retired under a voluntary retirement scheme but was doing business of in cosmetics. The accused was running a prawn hatchery and in fact it was the case of the accused that the first cheque was given by him to the complainant undated in order to enable the complainant to obtain a loan for him and it appears from his evidence that he had already taken a loan of Rs.75,000/- from the bank he was working and as such was unable to obtain another loan from his Bank. 6. The Learned J.M.F.C initially convicted the accused by Judgment dated 18.4.2007 holding that as the accused had issued the subject cheques to the complainant and there was no dispute as regards the issuance of cheques, the signature, the amount and the name of the complainant, the burden was entirely on the accused to establish that the complainant had no authority to put the date and encash the cheques. The Learned trial Court further held that the complainant as payee had implied authority to put the date and after he had put the date the presumption under section 118 (b) operated and the burden therefore had shifted on the accused to establish 5 that he had not authorized the complainant-drawee to put the date on the cheque. The Learned trial Court also held that the accused had failed to prove by leading cogent evidence that there was no debt or other liability which according to the Learned trial Court had to be proved by bringing a witness to corroborate the evidence led by the accused and as such the accused had not discharged the burden cast on him. 7. The Learned First Appellate Court observed, that from the cross examination of the complainant it appeared that the complainant had paid Rs.45,000/- at one time and after a gap of one and a half month had paid Rs.10,500/- and if that was so it was not explained by the complainant or by his Advocate and it was also not understood, as to why the complainant had received five different cheques out of which four were dated 16.5.2005 and the remaining one was dated 12.5.05. The Learned First Appellate Court further observed that it was possible for the complainant to get only two cheques for the said two amounts, respectively. The Learned First Appellate Court further observed that the crossexamination of the complainant further showed that the complainant had advanced money to the accused in the month of November, 2002 and the accused had assured to make repayment 6 within one year and the cheques in question were dated 16.5.05 and 12.5.05 and if at all the accused had agreed to make repayment within one year it was not explained by the complainant as to how the subject cheques were dated 16.5.05 and 12.5.05. The Learned First Appellate Court also held that the complainant had admitted that the dates appearing on the cheques in question were written by him which according to the Learned First Appellate Court were written without the knowledge or consent of the accused for which the accused could not be held responsible which aspect was not at all taken into consideration by the Learned trial Court. The Learned First Appellate Court also held that the entire transaction as set out by the complainant appears to be highly fictitious and the case of the complainant that the complainant had advanced Rs.55,500/- to the accused and the cheques in question were issued by the accused for the discharge of the debt or liability does not appear to be probable, convincing and trustworthy and therefore the Learned First Appellate Court proceeded to acquit the accused, as aforesaid. 8. Shri Lotlikar, the Learned Senior Counsel appearing on behalf of the complainant, submits that the approach of the Learned First Appellate 7 Court is erroneous. Learned Senior Counsel further submits that the cheques in question having been given by the accused without writing the date, the complainant was entitled to put the date and complete the same and send them for payment. Shri Lotlikar submtis that these aspects were considered by the Learned trial Court. Learned Counsel further submits that the defence taken by the accused was not substantiated in as much as the accused had also not disclosed as to the amount of the loan which the complainant was to take on behalf of the accused and pay the amount of the loan to him. 9. On the other hand Shri S. S. Kakodkar the Learned Counsel on behalf of the accused, submits that the complainant came up with a case that the entire loan of Rs.55,500/- was given to the accused at one stretch but in cross examination it was brought out that according to the complainant Rs.45,000/- were given in November, 2002 and the balance amount of Rs.10,500/- was given one and a half month later. Learned Counsel further submits that in case the complainant had withdrawn the sum of Rs.55,500/-, from the Bank before it was given to the accused nothing prevented the complainant from producing the statement of account to 8 prove the said fact. Learned Counsel futher submits that the complainant as a Bank employee ought to have known that any payment of above Rs.20,000/- had to be made by cheque as required by section 269 SS of the Income Tax Act, 1961 and therefore the version of the complainant that he had withdrawn the amount allegedly given to the accused from the Bank and paid to the accused cannot be accepted. Learned Counsel further submits that in case the complainant had lent Rs.55,500/- in two installments of Rs.45,000/- and Rs.10,500/- the complainant has not explaind as to why there was a need for the accused to have given five cheques and giving of five cheques by the accused is in consonance with the case set out by the accused and regarding which the accused also gave his evidence. Learned Counsel submits that the facts stated by the complainant are not free from suspicion and therefore could not be accepted. Learned Counsel has placed reliance on the case of M.S. Narayana Menon alias Mani V/s. State of Kerala and another {(2006) 6 SCC 39} and Krishna Janardhan Bhat V/s. Dattatraya G. Hegde (AIR 2008 SC 1325). In reply it has been submitted by Shri Lotlikar that it is the accused who gave five cheques and it is he who ought to know as to why he gave five and not two or one in favour of the complainant. 9 10. As already stated, the complainant and the accused were both Bank employees and were known to one another for twenty-five years as stated by the complainant. The complainant has taken voluntary retirement while the accused continued with his Bank employment. If the complainant has given evidence in support of his case so has the accused and the accused has consistently deposed in support of the defence taken by him that the cheques in question were given by the accused to the complainant as stated by him. The accused was cross examined on behalf of the complainant and the said cross examination tends to support the case off the accused rather than that of the complainant. In the cross examination of the accused it was brought on record by the complainant that he had already taken the loan from the Bank where he was working, about four years back. It was also brought out from his evidence that he was doing another business of prawn hatching and whether he had any license for the same or not was certainly not relevant. It was clearly suggested by the accused to the complainant that the loan which the complainant was to take was meant for the prawn hatchery business of the accused. Firstly, it must be noted that the complainant did not adhere to his case set out in the complaint namely that 10 the loan was given at a stretch and on the contrary admitted that it was given on two occasions, i.e. first a sum of Rs.45,000/- in November, 2002 and thereafter one and a half month later. Secondly, according to the complainant the accused had agreed to pay the same within one year, however, the complainant is silent even on the aspect as to when the cheques in question were given to him. In his crosss-examination, it was stated by the complainant that he had assured the accused to assist him to obtain a loan from the Bank in order to repay his loan. Different interpretations are sought to be given on behalf of the complainant and on behalf of the accused, to the said statement. Learned Senior Counsel on behalf of the complainant has submitted that said statement has been wrongly recorded since otherwise it was never the case of the complainant that he had agreed to obtain a loan to give money to the accused to run his business. On behalf of the accused, it is submitted that the words "my loan" have mistakenly been recorded, but otherwise, the statement is correctly recorded. Be that as it may, the fact remains that the defence of the accused is consistent and in support of it the accused has given evidence and the complainant has not been able to make any in road by cross examination in the said evidence of the accused. On the contrary the complainant himself 11 has not adhered to the case set up hy him in the complaint and on the contrary has diverted from the case set out. The accused, therefore, by his own evidence had discharged the initial burden which was on him to show that the existence of consideration was improbable or doubtful. Therefore, it was for the complainant to have proved consideration as a matter of fact which the complainant has failed to do. 11. The view held by the Learned First Appellate Court is a plausible view and this being an appeal against acquittal, no interference is called for. The appeal, therefore, is hereby dismissed. N. A. BRITTO, J oc.