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In the High Court of Bombay at Goa
A.P. LAVANDE
The Bagayatdar Urban Co-operative Credit Society Ltd.
Versus
Vernon Vaz
CRIMINAL APPEAL NO.27 OF 2010
Decided On : 11-09-2012
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973, Section 374 - Appeal - Against acquittal - Trial Court by its judgment and order dated, 15.1.2010 acquitted accused/respondent of offence under Section 138 of Act - Contention that Magistrate failed to give effect to presumption under Sections 118 and 139 of Act and recorded findings based on conjectures and surmises - Accused discharged onus cast on him to establish that cheque in question not issued in discharge of debt which he owed to complainant as on 12.11.2008 - Findings recorded by Magistrate acquitting accused not perverse - View taken by Magistrate is a probable view - Accused sufficiently discharged onus cast on him on basis of evidence led by complainant itself - Impugned judgment and order warrants no interference - Appeal dismissed.
Close scrutiny of the evidence of the witness, discloses that he did not have any personal knowledge as to when the cheque in question was given to the complainant society. His evidence that the cheque was given by the accused to Mr. ’D’, is obviously hearsay. It is also pertinent to note that the complainant produced the loan account statement exhibit 25 for the period 1.1.2008 to 1.1.2009. The accused had taken the categorical defence that he did not owe an amount of Rs. 1,74,430/- to the complainant as on 12.11.2008. The witness in cross-examination, candidly admitted that he did not know how much money the accused had deposited with the complainant upto 2004 when the tenure of the loan came to an end. He added that it must be Rs. 70,000/- but the said statement is not borne out from any documentary evidence. The loan agreement exhibit 23 discloses that the tenure of the loan was to come to end by September, 2004. Therefore, it was necessary for the complainant to establish that in terms of the loan agreement, the amount due was not paid in time. Moreover, the witness has candidly admitted that after three defaults, the complainant was supposed to recall the loan. He also candidly admitted that he could not tell as to how many times the accused had defaulted in payment of loan instalments. He also stated that he could not produce the savings bank statement of the accused or the loan account statement of 6.8.2001. One more factor which goes against the complainant is that in the loan account statement exhibit 25 which has been produced by the complainant, it has been mentioned that on 30.1.2008 the complainant had debited cheque return charges. Obviously, therefore, another cheque given by the accused must have been deposited by the complainant in the bank which was dishonoured. However, the witness could not state the cheque number or the bank on which it was drawn nor he could state the cheque number in respect of which the complainant had filed criminal case for bouncing of cheque. He also stated that the complainant had filed one more case against the accused before Ponda Court, but he could not state the cheque number. A pointed suggestion was put to the witness that he was not revealing the cheque number because it is of the previous serial number. This fact assumes importance inasmuch as if in January 2008 the accused had issued a cheque to the complainant which was bounced, it was improbable for the accused to issue another cheque dated 12.11.2008 unless the complainant partly agreed to accept the cheque dated 12.11.2008 in lieu of the earlier cheque which was bounced. That is not the case of the complainant. On account of non-production of the loan account statement for the period 2001 to 2008, adverse inference has to be drawn against the complainant that in case the same was produced, it would have gone against the complainant. No doubt, under Section 4 of the Bankers’ Books Evidence Act, it is permissible for the bank to produce the loan account statement, but considering the facts in the present case, it was obligatory for the complainant to produce the loan account statement for the entire period i.e. 2001 to 2008. There is absolutely no reason forthcoming as to why the complainant produced the loan account statement of the accused for the period 1.1.2008 to 1.1.2009 and could not produce the loan account statement for the period 2001 to 2008. Moreover, the witness could not state as to whether the cheque was fully written or body was blank. There is one more aspect which assumes importance in the present case. There is nothing on record to establish as to how the accused came to know that his loan liability as on 12.11.2008 was Rs. 1,74,430/-. If the case of the complainant had to be accepted, then, the complainant must have given the cheque on 12.11.2008 to the officer of the bank after the accused was informed that his liability was as on that date was for Rs. 1,74,430/- and the accused after agreeing to pay the said amount, must have issued the cheque. In such a case, it was necessary for the complainant to examine witness to whom the cheque was issued by the accused. It is the case of the complainant that the accused had given cheque to Mr. ’D’ on 12.11.2008, although the same is denied by the accused. It was, therefore, necessary for the complainant to examine Mr. ’D’ to establish the fact that the accused had given the cheque to him, as claimed by the complainant. Mere fact that Mr. ’D’ has resigned from the bank by itself would not be sufficient to hold that he need not have been examined by the complainant. The complainant could have very well sought summons to Mr. ’D’ to examine him as witness. However, the complainant chose not to do so.
Thus, upon close scrutiny of the evidence led by the complainant what emerges is that the accused has been able to discharge the onus cast on him to establish that the cheque in question was not issued in discharge of debt which he owed to the complainant as on 12.11.2008. The findings recorded by Magistrate for acquitting the accused, cannot be said to be perverse and the view taken by the Magistrate is a probable view. Even if it is accepted that different view in favour of the complainant is possible, this by itself would not be sufficient to unsettle the order of acquittal passed by Magistrate in view of the settled law laid down by the Apex Court in a catena of judgments that in appeal against acquittal, the Court should interfere only if the view taken by the Magistrate is patently unsustainable in law and the findings recorded are perverse. Considering the facts and circumstances of the case, the accused has been able to discharge the onus cast on him on the basis of the evidence led by the complainant itself. Therefore, in Court’s considered view, no interference is warranted with the impugned judgment and order.
Heard learned Counsel for the parties.
2. By this appeal, the appellant takes exception to the judgment and order dated 15/01/2010 passed by the learned Judicial Magistrate, First Class, Ponda in Criminal Case No.101/NIA/2009/C acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). The appellant is the complainant while the respondent is the accused in the above case filed by the appellant for dishonour of the cheque dated 12.11.2008 for an amount of Rs.1,74,430/-.
3. The case of the complainant is that the accused issued the above referred cheque towards part payment of the loan availed by him. The cheque was delivered by the respondent on 12/11/2008 to Mr. Dayanand Chari. The defence of the accused is that a signed blank cheque was given by him at the time of sanctioning the loan agreement along with the other cheques and the said cheque was misused by the complainant to recover the money which is not due and payable to it. Therefore, it was the case of the accused that there was no legally enforceable debt or liability.
4. In order to prove its case, the complainant examined PW1-Subhod Verekar, who was at the relevant time, was the manager of the society. The defence of the accused in the statement under Section 313 of Cr.P.C. was that he had given a blank cheque which was misused by the complainant. The accused did not lead any defence evidence. The learned Magistrate, upon appreciation of the evidence, oral and documentary, led by the complainant, acquitted the accused of the offence punishable under Section 138 of the Act.
5. Mr. Diniz, learned Counsel appearing for the appellant/complainant submitted that the order of acquittal passed by the learned Magistrate, is patently unsustainable in law inasmuch as the learned Magistrate has not appreciated that there is presumption under Sections 118 and 139 of the Act regarding legally enforceable debt when a cheque is issued. Learned Counsel further submitted that the accused has not disputed that he had entered into an agreement of loan and there was disbursement of loan. Further, the accused had not disputed that he had signed the cheque nor he had given reply to statutory notice issued to him prior to initiation of criminal proceedings. Therefore, an adverse inference has to be drawn against the accused. Learned Counsel further submitted that the accused had not discharged the burden on him to show that he repaid the entire loan by producing repayment receipts. Learned Counsel further submitted that the amount mentioned in the cheque tallies with the extract of the account produced by PW1-Subhod Verekar. Learned Counsel further submitted that no suggestion was put to PW1-Subhod that the extract was not correct or not as per the loan account book and, therefore, merely because the entire loan account statement was not produced, the same cannot be held against the complainant. Learned Counsel further submitted that the extract can be produced under Section 4 of the Bankers Book Evidence Act. No attempt was made by the accused to seek entire account and the witness was not asked to produce the entire account. The witness also was not confronted with the loan account number in the extract to enable to him to explain the alleged inconsistency in the loan account number. Learned Counsel further submitted that the evidence taken by the accused, has not been proved inasmuch as the accused did not step into the box to depose as to when and to whom the alleged blank cheque was given. Non-examination of Dayanand Chari, the manager, is not fatal to the prosecution case inasmuch as the accused himself has suggested to PW1-Subhod that the cheque was not given to Mr. Chari and as such, no adverse inference can be drawn for non-examination of Mr. Chari, who had resigned and left the services of the bank.
Learned Counsel further submitted that the defence taken by the accused was an afterthought. Learned
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