1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 34 OF 2008 The Bicholim Urban Co-operative Bank Ltd., a Co-operative Society registered with the Registrar of Co-operative Societies and having its Central Office at “Nandanvan” Bicholim-Goa represented by its Manager(Recovery Cell) Shri V. G. Prabhudessai, residing at Kamat Nagar, Ashwini Apartments, Porvorim-Goa. ... Appellant versus 1. Shri Raju Suresh Mulgaokar House No.343, behind Vetal Temple, Shirodwadi, Mulgao, Bicholim-Goa. 2. State through the Public Prosecutor, Panaji-Goa. ... Respondents Shri R. G. Ramani, Advocate for the Appellant. Shri D. Gaonkar, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 31ST JULY, 2009. ORAL JUDGMENT Heard. 2 2. This is complainant's appeal and is directed against Judgment dated 29-2-2008 of the learned J.M.F.C., Bicholim, acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881. The admitted facts could be stated as follows:- The complainant is a Banker and the accused is its customer. The complainant had given to the accused a loan of Rs.50,000/- on 1-9-2004 under Loan Account No.LMTU 21016 upon execution of an agreement for loan and a demand of promissory note which were produced by the complainant at the time of evidence at Exh.3 colly. The said loan was payable on or before 1-9-2009 in sixty monthly instalments of Rs.1,165/- and the first installment was to be paid on or before September, 2004. The loan was to carry interest of 14% or such other rate as may be fixed by the Bank. The loan was taken by the Respondent-Accused for the purpose of repairing his house. 3. There is also no dispute that the accused gave a cheque dated 11-8-2005 in favour of the complainant for Rs.54,653/- drawn on his account in the same Bank having Saving Bank Account No.23734. Although, it is submitted on behalf of the accused, that a suggestion was put to the complainant's witness that issuance of the cheque in the sum of Rs.54,653/- did not arise, a suggestion which otherwise was denied, the fact remains that in the course of the trial the accused did not dispute either the date or the name of the payee or his signature or the amount shown on the said cheque. The complainant sent the statutory demand 3 notice dated 16-8-2005 which the accused received but did not reply. The complainant, therefore, filed the case with the allegation that the accused who had obtained a loan had in part payment of the said loan issued to the complainant a cheque bearing No.103545 dated 11-8-2005 in the sum of Rs.54,653/- favouring the complainant drawn on the Saving Account of the accused bearing No. 23734 which cheque on presentation was returned with remark “insufficient funds”, and, therefore the complainant sent the said notice dated 16-8-2005 demanding the said payment in the sum of Rs.54,653/- within a period of fifteen days which was not complied by the accused, and as such, the complaint came to be filed on 27-5-2005, and in support thereof the complainant examined their Manager Shri Prabhudessai. 4. The case of the accused was of denial simpliciter. Although, the accused showed an inclination to examine himself as a witness on 30-7-2007 the accused did not step in the witness box and all that the accused stated was that a false case was filed against him. 5. The learned Magistrate noted that he failed to understand how the complainant-Bank unilaterally recalled a loan amount without intimating the accused. In fact, it appears that the learned Magistrate failed to understand that in terms of the loan agreement, particularly Clause 3 thereof, the loan could be recalled in case the accused failed to pay any installment and it was not the case of the accused that he had paid a single installment, or at least that was not the case 4 put to the complainant's witness in cross-examination. The learned Magistrate also gave undue weight to the fact that the subject cheque was not accompanied by a deposit slip inspite of the statement of PW1/Vithal Prabhudessai, that that would depend on the party himself. In other words, it is the accused who had to fill the deposit slip and submit to the Bank and in case he did not do it, he could not take advantage of his own wrong. It is to be noted that admittedly the cheque given by the accused was to the complainant itself and it was a cross cheque. That it was not accompanied by the deposit slip was of no consequence for in the absence of a deposit slip the Bank was certainly entitled to either debit the amount to the Savings Bank of the accused and credit the same to the loan account of the accused. 6. Shri D. Gaonkar, learned Counsel appearing on behalf of Respondent No.1/Accused submits that the subject cheque was given without a deposit slip. Learned Counsel further points out that the complainant's witness had admitted that on the date the cheque was issued the accused was liable to pay only Rs.20,000/-, and being so, the subject cheque having been for an amount more than that, which was actually not due by the accused, the accused would not be liable. In this context, Shri Gaonkar, learned Counsel has placed reliance on a Judgment of this Court in the case of Shri Mukund Zingdo Naik v. Shri Durganand Dinkar Parab(unreported decision in Criminal Appeal No.83 of 2006 decided on 24-2-2009) wherein it was stated as follows:- 5 “This Court in Laxmikant D. Naik Karmali v. Santosh Naik(2006(2) Bom.C.R. 830) has held that when a cheque is issued for an amount more than due by the accused, Section 138 of the Act is not attracted”. 7. On the same aspect, learned Counsel has also placed reliance on the case of Smt. Taraben Jamnadas v. Narendra Kumar Khetsi and others(2007(6) AIR Bom R 417). Learned Counsel has further submitted that the complainant has not produced a statement of account to show how much the accused was liable to pay to the complainant as on the date of the cheque i.e. on 11-8-2005 inasmuch as the complainant had also not produced any evidence to support his statement that the entire loan was recalled. Learned Counsel has further submitted that the subject cheque was not given with a deposit slip and that it was not towards a legally enforceable debt that as on the date the cheque was given. Learned Counsel has also placed reliance on the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde(AIR 2008 SC 1325) wherein the Apex Court has observed that an accused in discharging the burden of proof placed upon him under a statute need not examine himself and that he may discharge his burden on the basis of the materials already brought on record. It is also stated that an accused has a constitutional right to maintain silence and the standard of proof on the part of an accused and that of the prosecution in a criminal case is different. The Apex Court has also cautioned that the Courts should not put a blind eye to the ground realities and other important principles of legal jurisprudence, namely presumption of innocence as a human right and the 6 doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. 8. As already stated, the complainant had given to the accused a loan of Rs.50,000/- on 1-9-2004 repayable in instalments. As already stated, according to the complainant the subject cheque was given towards part payment of the said loan. At the costs of repetition, it may be stated again that the accused raised no dispute as regards the said cheque, whether in terms of his signature, the amount written thereon, the date and the name of the payee some of which factors also carry a presumption in terms of Section 118 of the Negotiable Instruments Act, 1881. It is not the case of the accused that he had paid a single installment, the first installment having been due on 30-9-2004, and according to Shri Ramani, learned Counsel the amount due by the accused to the complainant as on the date of the cheque was Rs.62,815/-, Rs.50,000/- being due on the principal amount and the balance being due on the interest payable. There is no doubt that the complainant's witness did state in his cross-examination that as on the date of the cheque the due amount approximately payable by the accused would be Rs.20,000/-, and it is quite probable that that statement was not correctly recorded because it does not fit in the admitted position in the case, namely that the loan was taken, no installment was paid and the loan payable was with interest and the 7 amount as on 11-8-2005 works out to Rs.62,815/- which certainly was more than the amount for which the accused gave the subject cheque. 9. Section 139 states that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part of any debt or other liability. The accused in this case did not step in the witness box, and not even a suggestion was put to the complainant's witness that he had paid a single installment. True, the complainant's witness did not produce a statement of account but that was hardly required in the absence of any allegation that the accused had paid any installment or any part of the loan. True, the said presumption is rebuttable and can be rebutted on the basis of facts elicited in favour of the accused from the examination of the complainant, the documents produced as well as by the accused giving evidence of his own. Nothing of that sort had happened in this case. The loan was admitted. The giving of cheque was admitted. The amount due by the accused in the absence of payment of any installment was more than the amount for which the cheque was given. The accused had failed to rebut the presumption. The learned trial Court was not at all right in acquitting the accused. 10. Consequently, the complainant deserves to succeed. The impugned Order is hereby set aside and the accused convicted under Section 138 of the Negotiable Instruments Act, 1881. 8 11. At the request of learned Counsel on behalf of Respondent No.1 stand over to Monday, 3rd August, 2009, at 2-30 p.m. 12. It is made clear that no further adjournment would be granted. N. A. BRITTO, J. RD DATE : 3RD AUGUST, 2009. 13. Shri Ramani, learned Counsel has submitted that the complainant would be happy in case a sum of Rs.70,000/- is paid by the accused by way of compensation without imposing any fine or sentence of imprisonment. Learned Counsel appearing on behalf of the accused has also no objection. 14. In view of the above concession made, the accused is hereby directed to pay to the complainant a sum of Rs.70,000/- by way of compensation under Section 138 of the said Act, and in default to undergo six months S.I. By consent, the accused is given time to pay the said compensation within a period of four weeks. In case it is not paid, the learned trial Court is directed to execute the sentence. N. A. BRITTO, J. RD