... 1... IN THE HIGH COURT OF BOMBAY, AT GOA. CRIMINAL MISC.APPLICATION NO. 252 OF 2009. Shri Rajendra Babal Naik, s/o late Shri Babal M. Naik, major in age, married, businessman, r/o Galshirem, Kavlem, Ponda, Goa. ... Applicant v e r s u s 1. Shri C. M. Mathew, major in age, bachelor, businessman, r/o flat no.S-2, Kurtakar Nagar, Opp. Hotel Divine, Fatorda, Margao, Goa. 2. S T A T E Through Public Prosecutor. ... Respondents Mr. A. D. Bhobe Advocate for the applicant. Mr. Deep Shirodkar, Advocate for the respondent no.1. Ms. W. Coutinho, Public Prosecutor for the respondent no.2. CORAM: N. A. BRITTO, J. Dated: 12th October, 2009. ORAL JUDGMENT: The complainant seeks leave to appeal. ... 2... 2. The complainant had prosecuted the accused under Section 138 of the Negotiable Instrument Act 1881. The case of the complainant, in brief, was that the complainant had lent an amount of Rs.2,90,000/- to the accused and towards the repayment of the same the accused had given to the complainant the subject cheque i.e. the cheque dated 30.12.2004 for Rs.2,90,000/-. 3. The complainant sent a statutory notice to the accused. The accused replied the same. In the said reply, the accused alleged that the said cheque was stolen by the complainant when the complainant had visited the accused. The complainant did not file any reply. 4. The complainant filed complaint and examined himself in support of his case. The complainant also examined one Sophia Noronha to say that she was present when the subject cheque was given by the accused to the complainant. According to the complainant when Rs.2,90,000/- was given to the accused one Maria Alva was present but admittedly, the said Maria Alva was not examined. The accused also examined himself. ... 3... 5. There is not dispute that the subject cheque was dishonoured and according to the Bank's Memo, it was dishonoured because the payment was stopped by Court attachment. Neither the complainant nor the accused have thrown any light as to why exactly the bank had dishonoured the said cheque or for that matter at whose instance the account of the accused was attached. 6. Be that as it may, the learned Trial Court came to the conclusion that the defence taken by the accused that the subject cheque was stolen by the complainant from the office of the accused could not believed and one of the reason assigned by the learned Trial Court is that the accused did not pursue, as was expected of him, the complaint filed by him in that regard to the Police station. Nevertheless, the learned Trial Judge came to the conclusion that the case of the complainant that a sum of Rs.2,90,000/- was advanced by him to the accused towards purchase of a plot could not be believed as the complainant could not give the description of the property, was not even aware as to who was its owner, did not know any details of the plot like its area, boundaries, survey number, nature, etc. in as much as the complainant had not even seen the documents pertaining to the ... 4... said property. The learned Trial Court also observed that the complainant had not even visited the plot which he had agreed to purchase from the accused nor did he know the rate per square metre of the plot, the complainant had only stated that it was a beach side property and it was going cheap. In other words, the learned Trial Court came to the conclusion that though not specifically stated in so many words that the complainant had failed to prove that the cheque was supported by any consideration. 7. Shri Bhobe, learned counsel appearing on behalf of the complainant submitted that the only defence taken by the accused having been disproved and the complainant having had a cheque given by the accused there was no other option for the learned Trial Judge but to raise a presumption that the cheque was given towards a debt or liability towards the complainant and based on the same hold the complainant case as proved. 8. On the other hand, learned counsel Shri Shirodkar appearing on behalf of the accused has submitted that the presumption available to the complainant in terms of Section 118 and 139 of the Code could have been rebutted by the accused ... 5... from the very evidence of the complainant as well. The learned counsel further submitted that the case of the complainant that the complainant had advanced a sum of Rs.2,90,000/- on four different occasions in the year 2003 when the cheque was of the year 2004 without any receipt having being issued by the accused was totally unbelievable. Learned counsel further submitted that the presumption could also be rebutted by drawing an adverse inference against the complainant for non examination of Maria Alva who according to the complainant, was present when the complainant had advanced the said sum of Rs.2,90,000/-. Learned counsel further submitted that when the accused had made an allegation in the reply that the complainant had stolen the cheque, the complainant did not even reply and on that count also adverse inference ought to have been drawn against the complainant in terms of the judgment of this Court in Girish Kantappa Shetty v. State of Maharashtra {2004 ALL MR (Cri) 1721} wherein it is stated as follows: “Failure on the part of the complainant to rejoing to the reply sent by the accused wherein the accused has specifically denied having issued the cheque and alleged tht the cheques were tolen from his office and ... 6... misused by the complainant would require adverse inference to be drawn against the complainant. When such serious allegations were made the natural reaction of the complainant would hve been to vehemently deny that the cheques were stolen and forged and fabricated by him and to have sent a rejoinder threatneing the accused with legal action.” 9. In the case of K. Prakashan v. P. K. Surenderan {(2008) 1 SCC 258} the Apex Court has stated that it trite law that if two views are possible the Apellate Court shall not reverse the judgment of acquittal only because another view is possible to be taken. 10. In my view, the view taken by the learned Trial Court is only possible view which could be taken in the facts and circumstances of the case of the complainant who did not even examine the said Maria Alva, who according to the complainant was present at the time when the sum of Rs.2,90,000/- was given by complainant to the accused towards sale of a property, regarding which the complainant was not able to give even any details. That apart, the complainant had not set out in his ... 7... complaint as to when in the year 2003, the said sum of Rs.2,90,000/- was given by him to the accused but only in the cross examination he gave some details that it was given on four different occasions that is to say Rs.50,000/- on three occasions and Rs.40,000/- on one occasion but did not state whether on all the four occasions, the said Maria Alva was present or not. It is difficult to accept that in the year 2003, the complainant would have advanced a sum of Rs.2,90,000/- and wait until 30.12.2004 to receive the cheque for the said amount, without any previous documents executed by the complainant and the accused. 11. The Apex Court has observed in Krishna Janardhan Bhat v. Dattatraya G. Hegde {(2008) 4 SCC 54} that the Courts must be on guard to see that merely on the application of presumption contemplated udner Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistakn conviction. The Apex Court further observed that the defendant can prove the non existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing the eixstence of consideration as improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter ... 8... of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. 12. Again in the case of Kumar Exports v. Sharma Carpets {(2009) 2 SCC 513} the Apex Court has held that in the trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the excution of the negotiable instrument is either proved or admitted. The Apex Court has further held that a presumption is not in itself evidecne but only makes a prima facie case for a party for whose beenfit it exists and in a case under Section 138 of the Act the accused has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non existence or consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. 13. Considering the facts of the case and in the absence of ... 9... said Maria Alva for whose non examination, an adverse inference is required to be drawn against the complainant, the accused on the basis of the complainant's own evidence has sufficiently proved that consideration and debt did not exist or in any event had proved that it was improbable. 14. In the light of the above, I am of the view, that the findings of the learned Trial Court could not be faulted. This is not a fit case to grant special leave to appeal. The application is dismissed. N. A. BRITTO, J. lh/.