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2013 Supreme(Bom) 2271
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Mukund Vasudev Naik
Versus
Deepak Shamsundar Naik & Another
Criminal Appeal No. 27 of 2012
Decided on : 18-11-2013
For the Appellant:Deep Shirodkar, Advocate.
For the Respondents:R1, Gaurish Agni, Advocate, R2, Mrs. M. Pinto, Additional Public Prosecutor.
The burden of proof on the accused to rebut statutory presumptions under the Negotiable Instruments Act and the complainant's obligation to establish the existence of the debt.
Headnote:
Negotiable Instruments Act - Dishonoured Cheque - Section 138 - 118, 139 - The court discussed the presumptions under Sections 118 and 139 of the Negotiable Instruments Act, and the burden of proof on the accused to rebut these presumptions. The court also considered the issue of including interest in the cheque amount and the relevance of statutory notices in establishing the debt. The court emphasized the need for the complainant to prove the existence of debt and the accused's burden to provide satisfactory evidence to rebut the presumptions.
Fact of the Case:
The appellant filed a complaint against the accused for dishonour of a cheque issued in discharge of a debt. The accused denied the debt and pleaded not guilty. The trial magistrate acquitted the accused, finding that the total cheque amount exceeded the actual debt claimed by the complainant.
Finding of the Court:
The court found that the accused successfully rebutted the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The court held that the complainant failed to prove the existence of the debt beyond reasonable doubt, and the accused was rightly acquitted.
Issues: The issues revolved around the existence of the debt, inclusion of interest in the cheque amount, and the burden of proof on the accused to rebut the statutory presumptions.
Ratio Decidendi: The court emphasized the need for the complainant to establish the existence of the debt and the accused's burden to provide satisfactory evidence to rebut the presumptions under Sections 118 and 139 of the Negotiable Instruments Act.
Final Decision: The appeal was dismissed, and the court upheld the acquittal of the accused, finding no perversity in the impugned judgment and order.
Heard Mr. Shirodkar, learned Counsel appearing on behalf of the appellant, Mr. Agni, learned Counsel appearing on behalf of the respondent no.1/accused and Mrs. Pinto, learned Additional Public Prosecutor appearing on behalf of respondent no. 2.
2. This appeal takes exception to the Judgment and Order dated 07/07/2011 passed by the learned Judicial Magistrate, First Class, Sattari at Valpoi in Criminal Case No. 61/OA/2010.
3. The appellant was the complainant, whereas respondent No. 1 was the accused in the said case. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said criminal case.
4. The complainant had filed the complaint against the accused for offence punishable under section 138 of the Negotiable Instruments Act, 1881 (“The Act”, for short).
5. The case of the complainant, in short, was as follows:
The accused is his relative and a Government employee and needed money and approached the complainant requesting for personal loan of Rs.4,00,000/- (Rs. Four lakhs only). However, the accused borrowed a sum of Rs.3,40,000/- (Rs. Three lakhs forty thousand only) from the period from July 2007 till January 2008 on six different dates. The amount of Rs.60,000/- (Rs. Sixty thousand only) was borrowed on 10/7/2007, Rs. 90,000/- (Rs. Ninety thousand only) was borrowed on 16/8/2007, Rs.70,000/- (Rs. Seventy thousand only) was borrowed on 3/9/2007, Rs. 40,000/- (Rs. Forty thousand only) was borrowed on 6/10/2007, Rs.55,000/- (Rs. Fifty Five thousand only) was borrowed on 24/12/2007 and Rs.25,000/- (Rs. Twenty Five thousand only) was borrowed on 25/1/2008. The accused promised to repay the total amount within six months i.e. on/or before 30/6/2008. The accused paid Rs.20,000/- (Rs. Twenty thousand only), but failed to pay the balance amount and subsequently issued a cheque of Rs.40,000/- (Rs. Forty thousand only). However, the said cheque was dishonoured and a criminal complaint was filed. Before the said case came for verification, the accused paid the entire cheque amount. On 5/7/2010, the accused executed an acknowledgment of debt whereby he agreed to repay the amount of Rs.3,20,000/- (Rs. Three lakhs twenty thousand only) in different installments on different dates. The accused failed to pay the installments amounting to Rs.2,80,000/- (Rs. Two lakhs eighty thousand only), but issued two cheques, one bearing no. 011081 dated 30/12/2009 and the other bearing no. 011082 dated 02/01/2010, both drawn on Goa State Cooperative Bank Poriem Branch for Rs.2,00,000/- and Rs. 1,40,000/-, respectively, towards the repayment of the liability including interest of Rs. 60,000/-, in favour of the complainant. However, when the said cheques were presented for encashment, they were returned with the remark “insufficient funds”. Thereafter, the demand notice was sent to the accused on 28/5/2010, which was duly received by him on 3/6/2010, but the accused failed to reply or to comply with the same. In the circumstances above, the said complaint, registered as C. C. 61/OA/2010, came to be filed.
6. After issuance of process, the substance of accusation was explained to the accused who pleaded not guilty. The complainant examined himself as PW.1 and produced the following documents: (i) Cheque dated 30/12/2009 for Rs.2,00,000/- along with cheque return memo (Exhibit 18-colly), Cheque dated 2/1/2010 for Rs.1,40,000/- along with cheque return memo (Exhibit 19-colly), copy of demand notice dated 28/5/2010 along with acknowledgment card (Exhibit 20), letter/acknowledgment of debt (Exhibit 21), letter from Sanquelim Urban Credit Society dated 30/4/2010 (Exhibit 22).
7. The case of the accused was of denial simplicitor. He did not step into the witness box nor did he examine any witness.
8. Upon consideration of the entire evidence on record, the Learned Trial Magistrate came to the conclusion that the total amount of both the cheques exceeds the actual debt i.e., the balance loan a
