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2009 ALL MR (Cri) 3528
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
N. A. BRITTO, J.
Shri. John Fernandes - Appellant
Vs.
Smt. Noorjahan Khan w/o. Nissar Khan & Anr. - Respondent
Criminal Appeal No.1 0 of 2009
Decided on : 8th October, 2009.
Negotiable Instruments Act, 1881 - Section 138 - Blank cheques forged - Detail information of how and where the cheques were forged not given - Accused did not present any defense nor support case - Under Section 313 his statements do not support or deny allegations - Presumptions under Section 228 and under Section 139 of the Act are rebuttable - Evidence of complainant is inconsistent - Witnesses not reliable - No merit in appeal. - The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also another option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case, and the pre-ponderance of probabilities, the evidential burden shifts back to the complainant and therefore the presumptions under Sections 118 and 139 of the Act will not again come to the complainant’s rescue.
However, the case of the complainant has been very inconsistent and the complainant has floundered, as the cross-examination progressed and from this it can be safely concluded that the complainant has proved himself to be unreliable and this has made way for the accused to prove the non-existence of consideration; or atleast that it was improbable or doubtful.
The two cheques were given by the accused to the complainant by way of repayment of advance of Rs. 11,95,200/- as the accused did not wish to sell the shop earlier agreed to be sold by the accused to the complainant. The complainant did not set out in his complaint as to when he advanced the said sum of Rs. 11,95,200/- to the accused and this in spite of the fact that in the reply the accused had called upon him to do so. In cross-examination the complainant stated that the said amount was advanced in the year 2004 in two installments and within four days and the complainant wished the Court to believe that he had advanced the said sums of Rs. 6,97,200/- and Rs. 4,98,000/- in cash to the accused in a span of four days without any receipt or for that matter any agreement for the sale of the shop.
The case of the complainant appears to be highly improbable that the accused had given the cheques towards the consideration the complainant had paid to the accused towards the sale of the shop, a shop which was not even in possession of the accused and which was being run by one Shroff.
Considering the facts of the case, the acquittal of the accused could not be faulted. Court found there is no merit in this appeal and consequently the same is hereby dismissed with costs.
Negotiable Instruments Act, 1881 - Sections 138 and 139 - Dishonour of cheque - Acquittal of accused - Appeal against - Cheque returned due to insufficient fund - Cheques were claimed to be received due to by way of repayment of loan - Held - Complainant did not set out in his complainant as to when the advanced the said amount - Case of complainant very inconsistent and complainant has proved himself to be unreliable - Falsity or weaken in defense version does not establish the case of complainant - Acquittal could not be faulted.
This a complainant's appeal and is directed against Judgment dated 27.8.08 of the Learned J.M.F.C., Margao, acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881.
2. The complaint was filed for dishonour of two cheques, details of which are as follows :
1. Cheque no.162965, dated 12.1.07 for Rs.6,97,200/-.
2. Cheque no.0188869, dated 12.1.07 for Rs. 4,98,000/-.
3. The first cheque was drawn on ICICI Bank and the 2nd was drawn on bank of India. There is no dispute that both the cheques were presented by the complainant for encashment but were returned with endorsement that the funds were insufficient. The case of the complainant is that the said cheques were given by the accused to defraud him and without any intention to pay the amount due of Rs.11,95,200/- knowing fully well that the said cheques were bound to bounce for lack of sufficient funds. The complainant sent separate legal notices, both dated 14.2.2007 in respect of the said two cheques demanding payment. The accused received the said notices and sent a reply.
4. In the reply, the accused took the plea that he was not liable to pay any amount to the complainant. The accused alleged that the complainant was doing money lending business and was in the habit of taking blank cheques and then filling the same and claiming huge amounts from the people. As regards the claim of the complainant that the said cheques were issued towards the sale amount of the shop of the accused situated at the New Market, Margao, Goa, the accused sated that the accused did not own any shop in the said market. The accused denied that the complainant had advanced to the accused Rs.11,95,200/-. The accused also called upon the complainant to give the details of the alleged payment of Rs.11,95,200/- including the date of alleged payment, the manner of payment, the place where payment was made and the names of the witnesses who were present. The accused also called upon the complainant to give the copies of the said cheques so that the accused could comment on the writing on the same. As regards the first cheque the accused further stated that about four years prior to the date on the cheque, the accused had taken a private loan from the complainant of Rs.10,000/ - and at that time the complainant had insisted that the accused should hand over a blank cheque to him as security, and in case the loan was not paid then he would take action but the accused subsequently paid the loan to the complainant and the said amount of the loan was paid through the servant of the accused who was asked to hand over the amount to the complainant and get the cheque back and at that time the complainant had informed the said servant that he was unable to trace the said cheque and avoided to return the same, but the accused did not realize the dishonest intention of the complainant. As regards the second cheque, the accused stated that in the year 2003 the accused had asked the complainant for a loan of Rs.2,00,000/- for construction of a house and the complainant had paid to the accused a sum of Rs.1,80,000/- by deducting in advance the interest payable and at that time the complainant had asked to give a blank cheque and accordingly the second cheque was given without any writing and signature was taken of the accused. The accused stated that the said loan of Rs.1.80,000/- was paid in cash to the complainant with interest thereon but the complainant did not return the said cheque saying that the said cheque was not signed or filled and was only a piece of paper and the same was misplaced. The accused also stated that the complainant had recently approached the accused with an offer to purchase the flat of the accused but the accused refused to sell the flat and as such the complainant got annoyed and misused the two blank cheques which were with the complainant to pressurize the accused to sell the flat. The accused also stated that the second cheque was not a cheque or a negotiable
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