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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT GOA
Prithviraj K. Chavan, J.
Vikas Gopi Bhagat – Appellant
Versus
Shivdas Pednekar – Respondent
Criminal Appeal No. 37 of 2014
Decided On : 24-07-2019
Negotiable Instruments Act – Sections 138, 139, 118 – Code of Criminal Procedure, 1973 – Section 313 – Order of Acquittal – Appellant is the complainant who is aggrieved with the Judgment and Order of acquittal passed by the Judicial Magistrate, First Class, in Criminal Case by which the respondent/accused came to be acquitted for the offence punishable under Sec.138 of the Negotiable Instruments Act. – Held, Accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the Appellate Court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused. – So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 the NI Act is concerned, apparent it is that the accused-appellant could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs. 3 lakhs each. – The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. – Trial Court had also consciously taken note of these facts and had drawn the requisite presumption. – Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. – The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption. – Law is well settled that if two views are possible, the Appellate Court should not reverse a Judgment of acquittal only because another view is possible to be taken. – The Appellate Courts jurisdiction to interfere is limited, wherein it is held that the Appellate Courts are required to be slow in setting aside the Judgment of acquittal, particularly in a case where two views are possible. – It is observed in para 15 that the same rule with the same rigor cannot be applied in a matter relating to the offences under Sec.138 of the Negotiable Instruments Act, particularly where a presumption is drawn that the holder has received a cheque for the discharge, wholly or in part, of any debt or liability. – However, it is further observed that the accused is entitled to bring on record the relevant material to rebut the presumption and to show that preponderance of probabilities are in favour of his defence then the Appellate Court is certainly entitled to examine the evidence in order to find out if preponderance indeed leans in favour of the accused. – Respondent/accused has succeeded in bringing on record probable defences and has rebutted the presumption; the complainant has not further discharged his burden to indicate that the transaction in question was a legally enforceable debt. – It is therefore, needless to take any different view other than the one taken by the Learned J.M.F.C., in the impugned Judgment while acquitting the respondent/accused. – Court do not find any substance in the appeal which deserves to be dismissed – Appeal Dismissed
JUDGMENT :
Prithviraj K Chavan, J.
The appellant is the complainant who is aggrieved with the Judgment and Order of acquittal dated 28.5.2013 passed by the Judicial Magistrate, First Class, Canacona, Goa, in Criminal Case no.7/OA/NI/2012 by which the respondent/accused came to be acquitted for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts in brief can be summarized as follows: The appellant filed a complaint under Sec.138 of the Negotiable Instruments Act, against the respondent/accused. It is the case of the appellant/complainant that since the respondent/accused was in need of financial assistance to carry out repairs of his house, he approached the appellant/complainant in the first week of November 2010, and requested to lend an amount of Rs.4,00,000/-. The respondent assured to repay the amount within a year. One Dinesh Sudhakar Komarpant introduced the respondent with the complainant for the first time in the month of August, 2010.
3. As the accused was in need of Rs.4,00,000/- and had assured to repay the amount within one year, the complainant paid an amount of Rs.4,00,000/- on 12.11.2010, which was duly acknowledged by the respondent in the presence of witnesses. The respondent issued a cheque bearing no.3194 dated 7.1.2012 in the sum of Rs.4,00,000/- drawn on the Mapusa Urban Co-operative Bank of Goa Limited, Mapusa Branch. When the complainant deposited the aforesaid cheque in his account at Syndicate Bank at Canacona Branch, under advance verbal intimation to the respondent/accused for the payment of the cheque amount, the said cheque came to be returned as dishonoured on 14.1.2012. There was an endorsement appearing on the Banker's Return Memo issued by the Banker as 'Not Arranged For". The complainant orally informed this fact to the respondent/accused, however the accused did not bother to repay the amount and has given false assurance.
4. A Legal Notice through Registered Post with acknowledgment due came to be issued to the respondent/accused on 18.1.2012 calling upon him to pay the amount of Rs. 4,00,000/- within fifteen days from the date of receipt of the Notice.
5. Despite due service of the Notice upon the accused on 19.1.2012, the respondent/accused neither paid the amount nor replied the said Notice. The complainant, therefore, filed a complaint under Sec.138 of the Negotiable Instruments Act.
6. The complainant filed an Affidavit in lieu of his evidence before the Judicial Magistrate First Class and has also examined Dinesh Komarpant in support of his case.
7. The respondent/accused did not step into the witness box, however he examined one Ajit Pawaskar, who works as an Under Secretary (GAD-II) in the Secretariate, Porvorim, in order to prove that the respondent was in the Office on 12.11.2010 on the basis of a biometric device which recognizes thumb impression of the employees.
8. The defence of the respondent/accused in his statement under Sec.313 of Cr.P.C. is that the complainant had never advanced loan of Rs.4,00,000/- and he had never visited Canacona Goa on 12.11.2010.
9. It is specifically contended that the complainant, Dinesh Komarpant and others had contacted him for securing the Government jobs. He had introduced them directly to one Mr. Janardhan Parsekar, Ex-Sarpanch of Bastora, who had some political contacts. The complainant alongwith others thereafter paid token amount to Mr. Janardhan Parsekar, Ex-Sarpanch of Bastora, for securing the Government jobs. Mr. Janardhan Parsekar, Ex-Sarpanch of Bastora, failed in his promise to secure the Government jobs to the complainant and others. The complainant and others therefore started harassing him by demanding the token amount. The respondent refused to pay the amount since he had not accepted a single pie. It is also the contention of the respondent/accused that in the month of November 2011, the complainant along with Dinesh Komarpant and other persons claiming to be the persons of Ramesh Tawadakar, MLA of Canaco
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