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In the High Court of Bombay at Goa
U.V. BAKRE
VPK Urban Co-operative Credit Society Limited
Versus
Mrs. Nandini Shankar Waingade & Another
Criminal Appeal No. 37 of 2010
Decided on : 11-01-2013
Negotiable Instruments Act, 1881 - Sections 138 and 139 - Complaint for dishonour of cheque.
Even if cheque has been issued as a security, complaint for its dishonour, lies under Section 138 of Act. - If a cheque is for an amount more than that due by the accused, Section 138 of the N.I. Act is not attracted. In the instant case admittedly, the accused had availed the loan of Rs. 85,000/- and as on the date of the cheque, the accused was owing money to the complainant towards the repayment of the said loan. The execution of the cheque by the accused is not denied. The accused at no time disputed the giving of the said cheque to the complainant. Therefore, the presumption is that it is supported by consideration and that there is legally enforceable debt or liability, in the sum of Rs. 1,58,139/- and also that the said cheque has been issued for the discharge of the said debt or liability, which p resumption had to be rebutted by the accused. The question is whether the said cheque was for an amount more than that due by the accused, on the date of that cheque.
It is for the accused, in the first instance, to prove the non- existence of the said consideration as on the date of cheque by raising appropriate defence. Only if the accused discharges the said initial onus of proof showing that extent of consideration is improper or illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact. Merely because the averment in the complaint is to the effect that the said cheque has been issued towards part payment of the liability, the same does not absolve the accused of his liability.
Bare suggestions that two blank cheques were obtained from the accused as security and that the complainant was not entitled to deposit the same without intimation to the accused, as the same were obtained as security, at the time of sanctioning of the loan, are not at all sufficient to rebut the presumption arising out of Section 139 of the N.I. Act. The accused is herself the borrower of loan and has not even explained as to how the said alleged security by way of cheque, was to operate. Besides, it is now well-settled that even if the cheque has been issued as a security, complaint lies under Section 138 of the N.I. Act.
Heard Mr. Pangam, learned Counsel for the appellant and Mr. Lobo, learned Counsel, appointed under Legal Aid Scheme, on behalf of the respondent no.1.
2. The appellant is the complainant of Criminal Case No. 393/NIA/2008/B and this appeal has been preferred against the Judgment and Order dated 29/10/2009 passed by the learned Judicial Magistrate First Class at Ponda ( J.M.F.C., for short) in the said Criminal Case.
3. The complainant had filed the said case against the accused, who is the respondent no. 1 in this appeal, for offence punishable under Section 138 of the Negotiable Instruments Act, (N.I. Act, for short). The case of the complainant is as follows:-
It is a Credit Co-operative Society registered under Maharashtra Co-operative Societies Act as made applicable to the State of Goa and having its head office at Mardol, Ponda, Goa and its branches in various parts of Goa including the one at Corlim, Goa. The complainant is engaged in financial business of accepting deposits including fixed deposits and advancing loans to its customers. The accused had taken a loan from it under loan account no. MTSCL/ 07 in the sum of Rs. 85,000/-and had agreed to repay the same along with interest in installments under the terms and conditions stipulated in the said loan agreement. The accused committed defaults in payments of the said loan installments and huge amount is overdue. After much follow-up and repeated requests, the accused, towards the part payment of her legal liability towards the complainant, had issued a cheque bearing no. 771604 dated 31/01/2008 for the amount of Rs.1,58,139/-drawn on Bank of India, Taliegao branch. The said cheque, when presented to the banker of the complainant, was returned unpaid on 4/2/2008 for the reason “insufficient funds”. The complainant through its advocate issued a legal notice to the accused on 25/5/2008 calling upon her to pay the cheque amount within 15 days from the date of receipt of the notice. The accused received the said notice on 26/02/2008 but failed or neglected to make the payment of the cheque amount within the stipulated period. Hence the complaint.
4. The complainant examined Shri Babani Gaude, Recovery in-charge and authorized officer of the complainant as PW1. The accused was examined under Section 313 of the Code of Criminal Procedure. He did not examine any witness in his defence.
5. The learned J.M.F.C. held that the Ponda Court had jurisdiction to entertain and try the said case and that the complaint was filed by a duly authorized officer of the complainant and PW1 has also been duly authorized to depose in the matter. She also held that the complainant is the payee of the said cheque. However insofar as the legally enforceable debt is concerned, the learned J.M.F.C. found that as per the complaint as well as the demand notice the cheque was issued towards the part payment of legal liability but as per the statement of account, the entire liability of the accused as on 31st December, 2007 has been shown as Rs.1,58,139/-which is equivalent to the cheque amount. The learned J.M.F.C. found that PW1 could not deny a specific suggestion put to him that if the accused has committed default, then as per the agreement she is liable to pay an amount of Rs.1,44,000/-as on 31/01/2008. The learned J.M.F.C. further found that there are various entries in the statement of account at Exhibit 27 about the amounts to which the complainant is not entitled under the agreement of loan and according to the learned J.M.F.C., if the complainant was entitled to the same based on some other documents, it was for the complainant to produce those documents. Learned J.M.F.C. held that the complainant has failed to prove that the cheque was issued towards a legally enforceable liability and the accused has brought sufficient evidence on record to prove her defence that the cheque was taken as security. Hence, the accused came to be acquitted. The complainant is aggrieved by the impugned
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