The case of the complainant was that the accused
required the money for construction of residential house i.e. for
purchase of construction material. However, there is absolutely
no evidence on record to prove that the accused was
constructing any residential house or that she had paid any bills
towards the purchase of construction materials. The complainant
has not produced a single receipt or acknowledgment issued by
the accused for having received any amount from the
complainant. In his deposition, the complainant (AW1) stated
that he paid the said amount by arranging from his Savings Bank
Account and by borrowing some amount from friends. He even
stated the name of one of the friends as Albert Norton. The
complainant, however, did not produce passbook of his Savings
Bank Account or any statement of account issued by the bank to
prove that he had withdrawn any money from the Savings Bank
Account. The complainant also did not examine said Mr. Albert
Norton to prove that he had borrowed money from him to be
given to the accused. In fact, AW1 stated that he is having the
statement of Bank to show the withdrawal from 05/09/2009 to
10/06/2010, but he did not produce any such statement due to
which the trial Court has rightly drawn adverse inference.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 19 of 2012
Shri Gajanan Lobaji Kitturkar
V/s.
Smt. Sumati S. Bhandari,
CORAM : U. V. BAKRE, J.
DATE : 10 th November, 2014
Citation; 2015AllMR(CRI)1039
Heard Mr. Mulgoankar, learned Counsel appearing
on behalf of the appellant, Mr. Teles, learned Counsel appearing
on behalf of the respondent no. 1 and Mrs. Pinto, learned
Additional Public Prosecutor appearing on behalf of the
respondent no. 2.
2. This appeal is directed against the judgment and
order dated 31/10/2011 passed by the learned Judicial
Magistrate, First Class, Panaji, Goa (trial Court, for short) in
Criminal Case No. OA NIA 424/2010/C.
3. The appellant was the complainant and the
respondent no. 1 was the accused in the said case. Parties shall,
hereinafter, be referred to as per their status in the said Criminal
Case.
4. The complainant had filed the complaint under
Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act,
for short) which gave rise to the said Criminal Case No. OA NIA
424/2010/C.
5. Case of the complainant, in short, was as follows :
The complainant and the accused were working for
New India Assurance Company Limited. The accused needed
financial assistance as she was in the process of constructing her
residential house and hence, requested the complainant,
somewhere in the month of September, 2009, to advance money
to her and assured that she will repay the same within a period
of six months. The complainant believed the accused and, from
time to time, arranged for money and paid the same to the
accused to pay her bills and for required construction material.
The total amount of ` 4,39,424/- was received by the accused
from the complainant in various instalments roughly between
05/09/2009 and 10/06/2010. Towards the full and final
settlement/payment of the total amount payable by the accused
to the complainant, the accused issued to the complainant a
cheque bearing no. 299420 dated 31/08/2010 drawn on the
Corporation Bank, Panaji Branch for a sum of ` 2,67,424/-. The
said cheque, when presented to the banker of the complainant,
was returned dishonoured with endorsement “funds
insufficient”. The complainant addressed a demand notice to the
accused through his Advocate as per law. The notice was
received by the accused, who replied to the same through her
Advocate thereby denying the liability and alleging that the
complainant had himself approached her for financial assistance
and in order to help him, she had issued the said cheque.
6. The accused pleaded not guilty to the substance of
accusation explained to her. The complainant examined himself
as AW1 and produced the cheque, the pay in slip, cheque return
memo, postal slip, A.D. Card, the legal notice and the reply of
the accused. The statement of the accused was recorded under
Section 313 of Cr.P.C. The accused denied the case of the
complainant and stated that the complainant had approached the
accused for financial assistance and, therefore, the accused had
issued the cheque bearing No. 299420 for ` 2,67,424/- to the
complainant, but ultimately the accused could not make
arrangement for the money and, therefore, she had requested
the complainant not to deposit the said cheque and to give it
back to her, but the accused misused the same. The accused did
not examine any witness.
7. Upon consideration of the entire evidence on record,
the learned trial Court found that the complainant failed to prove
that there was any legally enforceable liability. The trial Court
further held that the complainant failed to prove that he had
advanced the said sum of ` 4,39,424/-. It held that the accused
had rebutted the presumption available under the Act. The
accused, therefore, came to be acquitted. The complainant is
aggrieved by the acquittal and has filed the present appeal.
8. Mr. Mulgaonkar, learned Counsel for the complainant
submitted that no lump sum payment was made by the
complainant to the accused and that the amounts were paid in
various instalments and in such circumstances, Section 269-SS
of the Income Tax Act was not applicable and, therefore, the
learned trial Court erred in applying the said Section and
disbelieving the case of the complainant on that count. He
further submitted that the trial Court did not at all consider the
impact of the presumption under Section 139 of the N. I. Act to
ascertain whether the same was rebutted by the accused. He
pointed out from the cross-examination of AW1 that there was a
suggestion put to the complainant that he had received a sum of
` 1,25,000/- from the accused. According to the learned
Counsel, this itself showed that there was a debt. Learned
Counsel further submitted that the accused did not examine
herself and that there was no cogent explanation regarding the
cheque for ` 2,67,424/- given by the accused to the complainant.
He, therefore, urged that the impugned judgment and order is
perverse and, therefore, bound to be quashed and set aside and
the accused ought to be convicted and sentenced for the offence
under Section 138 of the N. I. Act.
9. On the other hand, Mr. Teles, learned Counsel for the
accused read out certain paragraphs from the impugned
judgment and submitted that no glaring error has been shown by
the complainant in the judgment of the trial Court and,
therefore, this Court cannot interfere with the said judgment of
acquittal which is based on correct appreciation of the evidence
on record.
10. I have gone through the record and proceedings of
the said Criminal Case No. OA NIA 424/2010/C and considered
the arguments advanced by the learned Counsel for the parties.
11. There is no dispute that the accused had issued cheque
dated 31/08/2010 for ` 2,67,424/- in favour of the complainant
which was presented by the complainant to his banker within the
validity period but the same was returned back for reason “funds
insufficient”. There is no dispute that the complainant, within the
prescribed time, issued legal notice to the accused as required
under section 138 of the N.I. Act but the accused failed to
comply with the requirement thereof due to which the
complainant filed complaint under Section 138 of the N.I. Act,
within the prescribed time limit.
12. The only question which arises for determination is
whether the trial court was justified in holding that the accused
had discharged the burden of proving that the cheque was not
issued in discharge of legally enforceable debt.
13. Though it is true that the learned trial Court has not
specifically mentioned the provision of Section 139 of the N. I.
Act which provides for the presumption in respect of a cheque,
however, it is seen that the trial Court has specifically held that
the accused has rebutted the presumption available under the
Act which obviously is the presumption under Section 139 of the
N. I. Act. Said Section 139 of the N. I. Act provides 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. Thus, merely because a cheque has been issued, the
same is not a conclusive proof of the fact that the same was
issued for the discharge of any legally enforceable debt or other
liability. The presumption under Section 139 of the N. I. Act is
rebuttable. The learned Trial Court has relied upon the
judgment of the Hon'ble Supreme Court in the case of Krishna
Janardan Bhat Vs. Dattatraya G. Hegde, [(2008)4 SCC 54],
wherein it has been held that the prosecution must prove the
guilt of the accused beyond all reasonable doubts whereas the
standard of proof so as to prove the defence on the part of the
accused is preponderance of probability which can be drawn not
only from the material brought on record by the parties, but also
by reference to the circumstances upon which he relies. The
accused can rebut the presumption by relying upon the material
which has come on record in the cross-examination of the
witness and he/she need not examine himself/herself.
14. Admittedly, the accused had replied to the legal notice
sent by the complainant to her and in the said reply, the accused
had specifically denied that she had received the amount of
` 4,39,424/- at any time in lump sum or in installments. It was
stated in the reply that the complainant had approached the
accused for financial assistance and the accused had told him
that she does not have money now, but is likely to get the same
by 25/08/2010 and, therefore, had issued the cheque to him
bearing No. 299420 dated 31/08/2010 drawn on Corporation
Bank, Panaji Branch for an amount of ` 2,67,424/-. In the reply,
the accused further stated that she was not able to arrange for
the money and she requested the complainant not to deposit the
said cheque and to handover the said cheque back to her, but the
complainant fraudulently deposited the said cheque. It was,
therefore, made clear by the accused that the complainant had
to establish that there was legally enforceable debt or other
liability.
15. In the complaint, the complainant has specifically stated
that an amount of ` 4,39,424/- was given by him to the accused
and that the cheque for a sum of ` 2,67,424/- was given towards
full and final settlement/payment of the total amount payable by
the accused to the complainant. There is no whisper in the
complaint as to how the payment towards full and final
settlement was ` 2,67,424/- when the amount allegedly borrowed
was ` 4,39,424/-. There is nothing in the complaint to show as
to what happened to the balance amount of ` 1,72,000/-. In the
affidavit-in-evidence also, the complainant (AW1) stated the
same facts. However, a perusal of the legal notice dated
21/09/2010 given by the complainant to the accused through his
Lawyer specifically states in paragraph 7 thereof that the said
cheque bearing No. 299420 dated 31/08/2010 for sum of
` 2,67,424/- was given as the part payment of the total amount
payable by the accused to the complainant. Therefore, there is
material contradiction between the case of the complainant as
pleaded in the complaint/affidavit-in-evidence and stated in the
legal notice.
16. The case of the complainant was that the accused
required the money for construction of residential house i.e. for
purchase of construction material. However, there is absolutely
no evidence on record to prove that the accused was
constructing any residential house or that she had paid any bills
towards the purchase of construction materials. The complainant
has not produced a single receipt or acknowledgment issued by
the accused for having received any amount from the
complainant. In his deposition, the complainant (AW1) stated
that he paid the said amount by arranging from his Savings Bank
Account and by borrowing some amount from friends. He even
stated the name of one of the friends as Albert Norton. The
complainant, however, did not produce passbook of his Savings
Bank Account or any statement of account issued by the bank to
prove that he had withdrawn any money from the Savings Bank
Account. The complainant also did not examine said Mr. Albert
Norton to prove that he had borrowed money from him to be
given to the accused. In fact, AW1 stated that he is having the
statement of Bank to show the withdrawal from 05/09/2009 to
10/06/2010, but he did not produce any such statement due to
which the trial Court has rightly drawn adverse inference.
17. It is pertinent to note that neither in the complaint nor
in the affidavit-in-evidence the complainant stated that the
accused had paid the amount of ` 1,72,000/- and, therefore, the
balance amount was ` 2,67,424/-. It is true that in the crossexamination,
a suggestion was put to AW1 that the accused had
paid to him a sum of ` 1,25,000/- on 02/06/2010 in front of
Federal Bank, Panaji in the presence of one Ganesh Rao.
However, a perusal of the cross-examination reveals that this
sum of ` 1,25,000/- has nothing to do with the alleged amount of
` 4,39,424/-. A specific suggestion has been put to AW1 that his
statement that the said amount of ` 1,25,000/- was paid to AW1
by the accused out of ` 4,39,424/- is a false statement. In his
cross-examination, AW1 has stated that the accused had paid
some amount to him and balance amount was ` 2,67,424/-. If
really, the accused had paid ` 1,25,000/- towards the part
payment of the amount of ` 4,39,424/-, then, the balance would
not be ` 2,67,424/-, but would be ` 3,14,424/-.
18. In the circumstances above, the findings of the trial
Court to the effect that the complainant failed to prove that he
had advanced ` 4,39,424/- to the accused and that there was no
legally enforceable debt is not erroneous. The finding of the trial
Court that the accused rebutted the presumption available under
the N. I. Act is also not erroneous. No glaring error has been
pointed out by the learned Counsel for the complainant in the
impugned judgment and order. The impugned judgment cannot
be termed as arbitrary or perverse. It is well settled that even if
two views are possible out of which one is the view taken by the
trial Court which is a possible view, the Appellate Court cannot
interfere with the same and cannot substitute the same by its
own view merely because that is also a probable view. The point
for determination, therefore, gets answered in the affirmative.
Hence, there is no merit in the present appeal.
19. In the result, the appeal is rejected.
U. V. BAKRE, J.
Print Page
required the money for construction of residential house i.e. for
purchase of construction material. However, there is absolutely
no evidence on record to prove that the accused was
constructing any residential house or that she had paid any bills
towards the purchase of construction materials. The complainant
has not produced a single receipt or acknowledgment issued by
the accused for having received any amount from the
complainant. In his deposition, the complainant (AW1) stated
that he paid the said amount by arranging from his Savings Bank
Account and by borrowing some amount from friends. He even
stated the name of one of the friends as Albert Norton. The
complainant, however, did not produce passbook of his Savings
Bank Account or any statement of account issued by the bank to
prove that he had withdrawn any money from the Savings Bank
Account. The complainant also did not examine said Mr. Albert
Norton to prove that he had borrowed money from him to be
given to the accused. In fact, AW1 stated that he is having the
statement of Bank to show the withdrawal from 05/09/2009 to
10/06/2010, but he did not produce any such statement due to
which the trial Court has rightly drawn adverse inference.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 19 of 2012
Shri Gajanan Lobaji Kitturkar
V/s.
Smt. Sumati S. Bhandari,
CORAM : U. V. BAKRE, J.
DATE : 10 th November, 2014
Citation; 2015AllMR(CRI)1039
Heard Mr. Mulgoankar, learned Counsel appearing
on behalf of the appellant, Mr. Teles, learned Counsel appearing
on behalf of the respondent no. 1 and Mrs. Pinto, learned
Additional Public Prosecutor appearing on behalf of the
respondent no. 2.
2. This appeal is directed against the judgment and
order dated 31/10/2011 passed by the learned Judicial
Magistrate, First Class, Panaji, Goa (trial Court, for short) in
Criminal Case No. OA NIA 424/2010/C.
3. The appellant was the complainant and the
respondent no. 1 was the accused in the said case. Parties shall,
hereinafter, be referred to as per their status in the said Criminal
Case.
4. The complainant had filed the complaint under
Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act,
for short) which gave rise to the said Criminal Case No. OA NIA
424/2010/C.
5. Case of the complainant, in short, was as follows :
The complainant and the accused were working for
New India Assurance Company Limited. The accused needed
financial assistance as she was in the process of constructing her
residential house and hence, requested the complainant,
somewhere in the month of September, 2009, to advance money
to her and assured that she will repay the same within a period
of six months. The complainant believed the accused and, from
time to time, arranged for money and paid the same to the
accused to pay her bills and for required construction material.
The total amount of ` 4,39,424/- was received by the accused
from the complainant in various instalments roughly between
05/09/2009 and 10/06/2010. Towards the full and final
settlement/payment of the total amount payable by the accused
to the complainant, the accused issued to the complainant a
cheque bearing no. 299420 dated 31/08/2010 drawn on the
Corporation Bank, Panaji Branch for a sum of ` 2,67,424/-. The
said cheque, when presented to the banker of the complainant,
was returned dishonoured with endorsement “funds
insufficient”. The complainant addressed a demand notice to the
accused through his Advocate as per law. The notice was
received by the accused, who replied to the same through her
Advocate thereby denying the liability and alleging that the
complainant had himself approached her for financial assistance
and in order to help him, she had issued the said cheque.
6. The accused pleaded not guilty to the substance of
accusation explained to her. The complainant examined himself
as AW1 and produced the cheque, the pay in slip, cheque return
memo, postal slip, A.D. Card, the legal notice and the reply of
the accused. The statement of the accused was recorded under
Section 313 of Cr.P.C. The accused denied the case of the
complainant and stated that the complainant had approached the
accused for financial assistance and, therefore, the accused had
issued the cheque bearing No. 299420 for ` 2,67,424/- to the
complainant, but ultimately the accused could not make
arrangement for the money and, therefore, she had requested
the complainant not to deposit the said cheque and to give it
back to her, but the accused misused the same. The accused did
not examine any witness.
7. Upon consideration of the entire evidence on record,
the learned trial Court found that the complainant failed to prove
that there was any legally enforceable liability. The trial Court
further held that the complainant failed to prove that he had
advanced the said sum of ` 4,39,424/-. It held that the accused
had rebutted the presumption available under the Act. The
accused, therefore, came to be acquitted. The complainant is
aggrieved by the acquittal and has filed the present appeal.
8. Mr. Mulgaonkar, learned Counsel for the complainant
submitted that no lump sum payment was made by the
complainant to the accused and that the amounts were paid in
various instalments and in such circumstances, Section 269-SS
of the Income Tax Act was not applicable and, therefore, the
learned trial Court erred in applying the said Section and
disbelieving the case of the complainant on that count. He
further submitted that the trial Court did not at all consider the
impact of the presumption under Section 139 of the N. I. Act to
ascertain whether the same was rebutted by the accused. He
pointed out from the cross-examination of AW1 that there was a
suggestion put to the complainant that he had received a sum of
` 1,25,000/- from the accused. According to the learned
Counsel, this itself showed that there was a debt. Learned
Counsel further submitted that the accused did not examine
herself and that there was no cogent explanation regarding the
cheque for ` 2,67,424/- given by the accused to the complainant.
He, therefore, urged that the impugned judgment and order is
perverse and, therefore, bound to be quashed and set aside and
the accused ought to be convicted and sentenced for the offence
under Section 138 of the N. I. Act.
9. On the other hand, Mr. Teles, learned Counsel for the
accused read out certain paragraphs from the impugned
judgment and submitted that no glaring error has been shown by
the complainant in the judgment of the trial Court and,
therefore, this Court cannot interfere with the said judgment of
acquittal which is based on correct appreciation of the evidence
on record.
10. I have gone through the record and proceedings of
the said Criminal Case No. OA NIA 424/2010/C and considered
the arguments advanced by the learned Counsel for the parties.
11. There is no dispute that the accused had issued cheque
dated 31/08/2010 for ` 2,67,424/- in favour of the complainant
which was presented by the complainant to his banker within the
validity period but the same was returned back for reason “funds
insufficient”. There is no dispute that the complainant, within the
prescribed time, issued legal notice to the accused as required
under section 138 of the N.I. Act but the accused failed to
comply with the requirement thereof due to which the
complainant filed complaint under Section 138 of the N.I. Act,
within the prescribed time limit.
12. The only question which arises for determination is
whether the trial court was justified in holding that the accused
had discharged the burden of proving that the cheque was not
issued in discharge of legally enforceable debt.
13. Though it is true that the learned trial Court has not
specifically mentioned the provision of Section 139 of the N. I.
Act which provides for the presumption in respect of a cheque,
however, it is seen that the trial Court has specifically held that
the accused has rebutted the presumption available under the
Act which obviously is the presumption under Section 139 of the
N. I. Act. Said Section 139 of the N. I. Act provides 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. Thus, merely because a cheque has been issued, the
same is not a conclusive proof of the fact that the same was
issued for the discharge of any legally enforceable debt or other
liability. The presumption under Section 139 of the N. I. Act is
rebuttable. The learned Trial Court has relied upon the
judgment of the Hon'ble Supreme Court in the case of Krishna
Janardan Bhat Vs. Dattatraya G. Hegde, [(2008)4 SCC 54],
wherein it has been held that the prosecution must prove the
guilt of the accused beyond all reasonable doubts whereas the
standard of proof so as to prove the defence on the part of the
accused is preponderance of probability which can be drawn not
only from the material brought on record by the parties, but also
by reference to the circumstances upon which he relies. The
accused can rebut the presumption by relying upon the material
which has come on record in the cross-examination of the
witness and he/she need not examine himself/herself.
14. Admittedly, the accused had replied to the legal notice
sent by the complainant to her and in the said reply, the accused
had specifically denied that she had received the amount of
` 4,39,424/- at any time in lump sum or in installments. It was
stated in the reply that the complainant had approached the
accused for financial assistance and the accused had told him
that she does not have money now, but is likely to get the same
by 25/08/2010 and, therefore, had issued the cheque to him
bearing No. 299420 dated 31/08/2010 drawn on Corporation
Bank, Panaji Branch for an amount of ` 2,67,424/-. In the reply,
the accused further stated that she was not able to arrange for
the money and she requested the complainant not to deposit the
said cheque and to handover the said cheque back to her, but the
complainant fraudulently deposited the said cheque. It was,
therefore, made clear by the accused that the complainant had
to establish that there was legally enforceable debt or other
liability.
15. In the complaint, the complainant has specifically stated
that an amount of ` 4,39,424/- was given by him to the accused
and that the cheque for a sum of ` 2,67,424/- was given towards
full and final settlement/payment of the total amount payable by
the accused to the complainant. There is no whisper in the
complaint as to how the payment towards full and final
settlement was ` 2,67,424/- when the amount allegedly borrowed
was ` 4,39,424/-. There is nothing in the complaint to show as
to what happened to the balance amount of ` 1,72,000/-. In the
affidavit-in-evidence also, the complainant (AW1) stated the
same facts. However, a perusal of the legal notice dated
21/09/2010 given by the complainant to the accused through his
Lawyer specifically states in paragraph 7 thereof that the said
cheque bearing No. 299420 dated 31/08/2010 for sum of
` 2,67,424/- was given as the part payment of the total amount
payable by the accused to the complainant. Therefore, there is
material contradiction between the case of the complainant as
pleaded in the complaint/affidavit-in-evidence and stated in the
legal notice.
16. The case of the complainant was that the accused
required the money for construction of residential house i.e. for
purchase of construction material. However, there is absolutely
no evidence on record to prove that the accused was
constructing any residential house or that she had paid any bills
towards the purchase of construction materials. The complainant
has not produced a single receipt or acknowledgment issued by
the accused for having received any amount from the
complainant. In his deposition, the complainant (AW1) stated
that he paid the said amount by arranging from his Savings Bank
Account and by borrowing some amount from friends. He even
stated the name of one of the friends as Albert Norton. The
complainant, however, did not produce passbook of his Savings
Bank Account or any statement of account issued by the bank to
prove that he had withdrawn any money from the Savings Bank
Account. The complainant also did not examine said Mr. Albert
Norton to prove that he had borrowed money from him to be
given to the accused. In fact, AW1 stated that he is having the
statement of Bank to show the withdrawal from 05/09/2009 to
10/06/2010, but he did not produce any such statement due to
which the trial Court has rightly drawn adverse inference.
17. It is pertinent to note that neither in the complaint nor
in the affidavit-in-evidence the complainant stated that the
accused had paid the amount of ` 1,72,000/- and, therefore, the
balance amount was ` 2,67,424/-. It is true that in the crossexamination,
a suggestion was put to AW1 that the accused had
paid to him a sum of ` 1,25,000/- on 02/06/2010 in front of
Federal Bank, Panaji in the presence of one Ganesh Rao.
However, a perusal of the cross-examination reveals that this
sum of ` 1,25,000/- has nothing to do with the alleged amount of
` 4,39,424/-. A specific suggestion has been put to AW1 that his
statement that the said amount of ` 1,25,000/- was paid to AW1
by the accused out of ` 4,39,424/- is a false statement. In his
cross-examination, AW1 has stated that the accused had paid
some amount to him and balance amount was ` 2,67,424/-. If
really, the accused had paid ` 1,25,000/- towards the part
payment of the amount of ` 4,39,424/-, then, the balance would
not be ` 2,67,424/-, but would be ` 3,14,424/-.
18. In the circumstances above, the findings of the trial
Court to the effect that the complainant failed to prove that he
had advanced ` 4,39,424/- to the accused and that there was no
legally enforceable debt is not erroneous. The finding of the trial
Court that the accused rebutted the presumption available under
the N. I. Act is also not erroneous. No glaring error has been
pointed out by the learned Counsel for the complainant in the
impugned judgment and order. The impugned judgment cannot
be termed as arbitrary or perverse. It is well settled that even if
two views are possible out of which one is the view taken by the
trial Court which is a possible view, the Appellate Court cannot
interfere with the same and cannot substitute the same by its
own view merely because that is also a probable view. The point
for determination, therefore, gets answered in the affirmative.
Hence, there is no merit in the present appeal.
19. In the result, the appeal is rejected.
U. V. BAKRE, J.
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