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IN THE HIGH COURT OF BOMBAY AT GOA
Valmiki Menezes, J.
Mr. Jerry D’Souza and anr. – Applicants
Versus
Mr. Joaquim Antonio Fernandes and ors. – Respondents
Criminal Revision Application No.65 of 2016
Decided On : 27-11-2024
Advocate Appeared:
For the Applicant :Mr Ganesh Naik, Advocate
For the Respondent:Mr Nilesh V.S. Shirodkar, Advocate, Mr Gaurish Nagvenkar, Additional Public Prosecutor
In cases under Section 138 of the Negotiable Instruments Act, the accused must provide evidence to rebut the presumption of a legally enforceable debt, which cannot be achieved through mere denial.
Headnote:(A) Negotiable Instruments Act - Section 138 - Criminal Procedure Code - Section 397 - Revision application against conviction - Petitioner convicted for dishonor of cheque issued for loan amounting to Rs.8,00,000/- - Complainant's evidence insufficient to establish capacity to lend - Presumptions under Section 139 not rebutted - Concurrent findings of fact by lower courts upheld. (Paras 1, 5, 12, 14)
(B) Burden of Proof - In cases under Section 138, the burden lies on the accused to rebut the presumption of a legally enforceable debt - Mere denial or lack of evidence from the complainant does not suffice to discharge this burden. (Paras 9, 10)
Facts of the case:
The petitioner was convicted for issuing a cheque that was dishonored due to insufficient funds, following a loan of Rs.8,00,000/- taken from the complainant. The petitioner argued that the complainant failed to prove his capacity to lend the amount.
Findings of Court:
The courts found that the petitioner did not adequately challenge the complainant's evidence regarding his capacity to lend, and the presumption of a legally enforceable debt remained intact.
Issues: The main issues included whether the complainant had the capacity to lend the money and whether the presumptions under Section 139 were rebutted.
Ratio Decidendi: The court ruled that the accused must provide evidence to rebut the presumption of a legally enforceable debt, and mere suggestions in cross-examination were insufficient. The concurrent findings of the lower courts were upheld.
Result: Revision application dismissed.
JUDGMENT :
Valmiki Menezes, J.
JUDGMENT:
1. This is a Criminal Revision Application under Section 397 Cr.P.C. impugning judgment dated 08.10.2015 passed by the Sessions Court, North Goa in Criminal Appeal No.97/2014 which has dismissed the Petitioner’s appeal arising from a challenge to a judgment of conviction dated 30.06.2014 passed by the Judicial Magistrate First Class, Panaji in Criminal Case OA/33/2012/B.
2. The Respondent, who is the original Complainant instituted the aforementioned criminal case under Section 138 of the Negotiable Instruments Act (the Act). According to the complaint filed before the Magistrate, the Petitioner/Original Accused had taken on loan, three amounts, Rs.5,00,000/-in May, 2009, Rs.1,00,000/-in February 2010 and Rs.2,00,000/-in June, 2010; owing an amount of Rs.8,00,000/-to the Complainant, on demand. It is the Complainant’s case that the Petitioner issued to him a cheque dated 24.08.2011 for this amount, which cheque was presented by the Complainant to his Bank on 28.09.2011 when it was dishonoured, and further presented on 23.11.2011, when it was once again dishonoured under a memo issued by the Bank on the same day with the endorsement that there were insufficient funds in the bank account of the Petitioner. Accordingly, the Complainant sent a notice dated 07.12.2011 to the Petitioner calling upon the Petitioner to pay the amount on the dishonoured cheque, and since no reply was forthcoming from the Petitioner, within the time stipulated under the Act, he filed a complaint on 21.01.2012 before the J.M.F.C. at Panaji.
3. At the trial, the Complainant examined himself, and on his evidence being closed, the Petitioner/Accused chose not to lead evidence or examine himself, and his statement under Section 313 Cr.P.C. was recorded. The Petitioner was convicted by the Magistrate for offence punishable under Section 138 of the Act and sentenced to undergo simple imprisonment for a period of one year and to pay to the Complainant a sum of Rs.10,25,000/-towards compensation in terms of Section 353(3) Cr.P.C. and in default to undergo simple imprisonment for a period of two months.
On an appeal bearing Criminal Appeal No.97/2014 being filed, the same came to be dismissed by the impugned order dated 08.10.2015 upholding all findings arrived at by the Magistrate. During the course of the present Civil Revision Application remaining pending before this Court, the Original Petitioner passed away and by order dated 18.03.2021, this Court opined that since the amount imposed as compensation on the deceased Accused would have to be paid out of his estate, his legal representatives will have a right to continue the Revision Application, and accordingly allowed the legal representatives of the deceased Accused to represent the Accused and agitate the question of the correctness of the orders passed by the Sessions Court and the Magistrate. It is noted that the Original Petitioner had deposited an amount of Rs.6,00,000/-in this Court under order dated 28.12.2015 and a further amount of Rs.4,25,000/-under another order of the same date as a precondition for suspending his sentence.
4. I have heard Shri Ganesh Naik for the Petitioner/Applicant and Shri Nilesh Shirodkar for the Respondent. I have perused the record of the criminal proceedings before the learned Magistrate, which have been placed before this Court by the Petitioner in the form of a compilation as also gone through the impugned judgment of the Sessions Court.
5. It is the contention of the Petitioner that in the absence of the Complainant leading positive evidence to establish that he had the capacity to transfer to the Petitioner the loan amount, the presumptions in terms of Section 139 of the Act ought to have been held by the Trial Court and by the Sessions Court as sufficiently rebutted. Learned Shri Ganesh Naik for the Petitioner further submits that the Complainant has not averred anywhere in his complaint or led evidence as to the fact that he had su
