1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 48 OF 2010 Shri Hakim Singh Chahar, resident of H. No. 37, Curca, Goa Velha, Goa. ... Appellant versus 1. Shri Krishna Vaigankar Resident of H. No.46, Curca, Goa Velha, Goa. 2. State through Public Prosecutor, High Court of Bombay at Panaji. ... Respondents Shri Satish Mahambrey, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 20TH JULY, 2010. ORDER Heard. 2. This is Complainant's appeal and is filed against Judgment/Order dated 5-2-2010 by which the accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881. 2 3. According to the Complainant, the Complainant had advanced a sum of Rs.1,00,000/- to the accused on 1-1-2005, to be repaid by 31-1-2006. Both the parties had executed an agreement on 10-11-2005. Towards the repayment of the loan advanced the accused had given a post dated cheque, dated 31-1-2006. The cheque was deposited by the Complainant for collection only to be returned dishonoured, on 3-2-2006 with endorsement that the funds were insufficient. A demand notice dated 9-6-2006 was sent by the Complainant to the accused which the accused received on 10-6-2006 but the accused failed to comply with the same. The Complainant examined himself in support of his case and so also his wife and one more witness. 4. The case of the accused was that the Complainant had approached him in December, 2004 for the sale of a maruti car for Rs.50,000/- as the Complainant is a broker. According to the accused, the Complainant had agreed to sell the car for Rs.40,000/- plus Rs.2000/-, and the Complainant had promised the accused to introduce to the owner. As the accused was not having sufficient money to purchase the said car, the Complainant told him that the Complainant was ready to purchase the motorcycle of the accused for Rs.30,000/- and the accused had to arrange only Rs.10,000/- or Rs.12,000/- or so for the purchase of the car. According to the accused, the motorcycle was handed over to the Complainant, a fact which the Complainant admitted. According to the accused, the accused had given a blank cheque for the 3 remaining amount but the Complainant neither introduced the owner of the car nor secured the documents for transfer and delivered the said car. According to the accused, the Complainant had also taken his signature on one blank paper in order to give his N.O.C. for transfer of his motorcycle in the name of the Complainant. The accused stated that he had not written the contents of the cheque and also did not sign the said agreement and his signature on the agreement has been manipulated. 5. Shri S. Mahambre, the learned Counsel appearing on behalf of the Complainant, submits that the learned trial Court has not at all considered the agreement dated 10-11-2005 between the parties. Learned Counsel submits that the points framed by the learned trial Court are not in accordance with law. Learned Counsel submits that the evidence of the Complainant and of his wife has been overlooked by the learned Magistrate. Shri Mahambre submits that the money given by the Complainant was accounted money, and, therefore the Judgment of this Court in Sanjay Mishra v. Ms. Kanishka Kapoor (2009 ALL MR(Cri) 1080) was not applicable. Learned Counsel concedes that there was a slight dispute as to where the cheque was handed over but submits that, that discrepancy was not enough to rebut the presumption available to the Complainant under the relevant provisions of law. Learned Counsel submits that the accused had admitted his signature on the cheque as well as the agreement. 4 6. On the other hand, Shri A. D. Bhobe, learned Counsel appearing on behalf of the accused submits that the evidence given by the accused has gone almost unchallenged and that the Complainant only put a few suggestions to the accused which were all denied by the accused. Learned Counsel submits that the Complainant has the motorcycle of the accused worth Rs.30,000/-, and that is the admitted position, and, therefore the accused had no liability towards the Complainant in the sum of Rs.1,00,000/-. Learned Counsel further submits that there are glaring contradictions in the evidence of the Complainant and his witnesses. According to the learned Counsel as per the demand notice, it was the case of the Complainant that the money was advanced on 10-11-2005 but the Complainant stated that the money was advanced on 1-1-2005. Learned Counsel further points out that if the Complainant stated that the subject cheque was handed over to the Complainant in the office of the Advocate, Complainant's witness Shahabuddin stated that the cheque was given to the Complainant at the Complainant's residence when the amount of Rs.1,00,000/- was given by the Complainant to the accused. 7. The Complainant has admitted that the amount of the cheque in words and figures was written by him. As already stated the Complainant has also admitted that the motorcycle of the accused is with him. 5 8. The learned Magistrate has come to the conclusion that in view of the admission by the Complainant that he is in possession of the motorcycle of the accused bearing No.GA-01-Y-6896 the defence taken by the accused appears to be probable. It is not the case of the Complainant that he has paid Rs.30,000/-, the value of the said motorcycle to the accused. The accused with his own evidence had discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful. It was therefore necessary for the Complainant to prove as a matter of fact that he had advanced to the accused a sum of Rs.1,00,000/- on 1-1-2005 as claimed by him. The evidence on this score is conflicting and unreliable. Complainant's attention was drawn to the notice wherein it was stated that money was advanced on 10-11-2005, and all that the Complainant stated was that it was a mistake. If, according to the Complainant the details of the cheque were written by him, according to the Complainant's witness the said Shahabuddin it is the accused who wrote the details of the cheque at the time when the money was taken. If the accused had given the post dated cheque on 31-1-2006, one fails to understand why its details could not be recorded in the said agreement which according to the Complainant's wife was signed in the office of Advocate Shri Mahambre. The Complainant admitted that he had not obtained any receipt from the accused at the time of advancing Rs.1,00,000/- to him. The Complainant stated that he had withdrawn the money from the Bank but when cross-examained further stated that he did not remember from 6 which account he withdrew the said money which was already withdrawn in January, 2005. In case the said amount was withdrawn by the Complainant, the Complainant could have certainly shown his passbook to support the withdrawal. Adverse inference has got to be drawn against the Complainant for non production of his bank pass book. 9. Considering the facts of the case, in my view, the acquittal of the accused cannot be faulted. There is no merit in this appeal, and consequently the same is hereby dismissed, with costs. N. A. BRITTO, J. RD