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2009 ALL MR (Cri) 3525
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
N. A. BRITTO, J.
Shri. Rajendra Babal Naik - Appellant
Vs.
Shri. C. M. Mathew & Anr. - Respondent
Criminal Misc. Application No.252 of 2009
Decided on : 12th October, 2009.
Negotiable Instruments Act, 1881 - Section 138 - Leave to appeal - Trial Court held that in any case cheque was not shown as adduced for consideration - In Court’s view trial Court was correct in holding that complainant had not been able to give details of property - For purchase of which it was issued nor how amounts were advanced to accused. - 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 existence 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 of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument.
A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists and in a case under Section 138 of the Act the accused 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. Considering the facts of the case and in the absence of 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 and not exist or in any event had proved that it was improbable.
The complainant seeks leave to appeal.
2. The complainant had prosecuted the accused under Section 138 of the Negotiable Instruments 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.
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 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 Sections 118 and 139 of the Code could have been rebutted by the accused 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-
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