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2013 Supreme(Bom) 2405
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Anant Bondre
Versus
Alfred David & Another
Criminal Miscellaneous Application No. 54 of 2013 In Stamp Number Main No. 292 of 2013
Decided on : 04-12-2013
For the Applicant:D.J. Pangam, Advocate.
For the Respondents:R1, J. Godinho, Advocate.
Headnote:Negotiable Instruments Act, 1881 - Section 138 - Acquittal of accused under. - Failure of complainant to prove his case beyond doubt, renders acquittal of accused charged for offence under Section 138 of Act, just and proper. - It is the case of the accused that the trucks were hypothecated to Ashok Leyland Finance Ltd. and the total outstanding loan was about Rs. 52 to 55 lakhs. In his affidavit-in-evidence, the accused specifically stated that there was an agreement between him and the complainant in which the complainant agreed to purchase the said trucks knowing that the said trucks were hypothecated and that the accused had to pay monthly loan instalments. He stated that it was agreed that the loan should continue to exist in the name of the accused and complainant should pay to the accused monthly instalments and he should in turn continue to pay monthly loan instalments of the financial institution. According to him, the consideration price for each truck was fixed at Rs. 16,00,000/- and since the complainant was unable to pay the entire consideration, he had offered to pay consideration amount in monthly instalments of Rs. 2,50,000/- to Rs. 3,00,000/-. The accused stated that bonafidely believing that the complainant would honour his commitments, in the month of January, 2005, he transferred possession of the five trucks to the complainant. He has stated that between September 2004 to March 2005, he had received from the complainant an amount of Rs. 4,70,000/- only. According to the accused, the complainant used the said trucks for about three months, but failed to pa y to him monthly instalments as agreed, due to which he had difficulty in paying the loan amount. He further stated that in the month of April, 2005, the complainant returned the trucks to him after using them for about three months and as a final settlement between him and the complainant, the accused agreed to pay an amount of Rs. 1,00,000/- to the complainant and accordingly, issued cheque of that amount which has been encashed by the complainant. According to the accused, the cheque for an amount of Rs. 5,00,000/- was earlier given only as a security since he had to pay the loan instalments to the financial institution and since the complainant was apprehending that he may not pay the loan amounts. No doubt there are dents created to the above case of the accused.
The complainant could not prove his case beyond doubt and the accused could rebut the presumption. Considering the case of the accused and testing the same on the touchstone of entire evidence on record, that by preponderance of probabilities, the accused has been able to prove that the cheque amount is more than the actual debt. In such circumstances, it cannot be said that the trial Court committed an error in holding that the complainant could not prove his case. The accused has therefore, been rightly acquitted of the offence punishable under Section 138 of the Act. No interference with the impugned judgment and order is called for, even if it is felt that another view is possible.
1. Heard Mr. D. J. Pangam, learned counsel appearing on behalf of the applicant and Mr. J. Godinho, learned counsel appearing on behalf of the respondent no.1.
2. Leave to appeal against the impugned judgment and order dated 29/11/2012 passed in Criminal Case No. 1117/OA/NI/O5/D is granted, as prayed for. Stamp Number Main No. 292/2013 be registered as appeal, forthwith.
3. Appeal admitted. Learned counsel appearing on behalf of the respondent no. 1 waives service of notice, after admission in the main appeal.
4. Heard forthwith with the consent of both the parties.
5. This appeal is directed against the judgment and order dated 29th November, 2012 passed by the learned Judicial Magistrate, First Class, (D-Court) Margao, in Criminal Case No. 1117/OA/NI/2005/D. The appellant is the complainant and respondent no. 1 is the accused in that case.
6. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said Criminal Case.
7. The complainant had filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). The case of the complainant, in short, was as follows:-
In the last week of January, 2005, the accused had agreed, by an oral agreement, to sell to the complainant five trucks of Ashok Leyland make for a consideration of Rs.16,00,000/- for each of the trucks. Towards part payment of the said agreement, the complainant paid to the accused a total sum of Rs.7,50,000/-. During the time of the said oral agreement the accused did not disclose to the complainant that the said trucks were hypothecated with financial institution and made the complainant to believe that they were completely owned by the accused. In April, 2005, the complainant came to know that the said trucks were hypothecated with a financial institution due to which the complainant requested the accused to return the money paid to the accused towards part consideration of the amount of the said five trucks. Towards the part payment of the said amount of Rs.7,50,000/-, the accused issued to the complainant two cheques:- one for Rs.5,00,000/-, bearing no. 044604 dated 20th April, 2005 drawn on Saraswat Cooperative Bank Ltd., Panaji, Goa and the other for Rs.1,00,000/- bearing No. 393998 dated 23rd May, 2005. The cheque which was for an amount of Rs.1,00,000/- issued by the accused was encashed on presentation by the complainant. When the cheque for Rs.5,00,000/- was presented for payment through banker of the complainant namely HDFC Bank, the same was returned on 22nd September, 2005 without being honoured with an endorsement “Funds Insufficient”. The complainant, through his Advocate issued statutory notice to the accused on 19th October, 2005. The notice was sent to the residential address of the accused and a copy of the same was sent to his office address. The said notice was received by the accused on 20th October, 2005 but the accused failed to make payment. Hence, the complainant filed the complaint which was registered as a Criminal Case No. 1117/OA /NI/2005/D.
8. The accused pleaded not guilty to the substance of accusation duly explained to him. In order to prove his case, the complainant examined himself as PW1 and three more witnesses, namely Shri Elvis Rebello as PW2, Celio Afonso as PW3 and Savio D’Souza as PW4.
9. In the statement under section 313 of Criminal Procedure Code, the accused admitted the agreement between him and the complainant but denied that the complainant had paid to him Rs.7,50,000/- and that the cheques were given by him towards part repayment of the said amount.
10. According to the accused, he had given the cheque of Rs.5,00,000/- as security and the cheque of Rs. 1,00,000/- towards settlement. Accused examined himself as DW1, and three witnesses, namely Shri Noel Noronha as DW2, Shri Mario D’Souza as DW3 and Shri Stanley Fernandes as DW4.
11. By the Judgment and order dated 6th February, 2010, the learned Magistrate acquitted the
