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(PANAJI BENCH)
P.V. Hardas, J.
Prabhakar D. Naik .... Applicant.
Versus
Jerry S. Viegas another .... Respondents.
Criminal Revision Application No. 23 of 2001, decided on 5-9-2001.
Advocates appeared :
A.F. Diniz, for applicant.
S.G. Bhobe, for respondent No. 1.
A.P. Lawande, P.P., for State/respondent No. 2.
The evidence and circumstances must probablise the defense to rebut the presumption under section 139 of the Negotiable Instruments Act, 1881.
Headnote:
Negotiable Instruments Act - Offence under section 138 - 1881 - [SUMMARY OF ACT SECTIONS REFERRED: Section 138 of the Negotiable Instruments Act, 1881]
Fact of the Case:
The respondent filed a complaint against the applicant for issuing cheques that were returned unpaid due to insufficient funds. The trial court convicted the applicant, and the appellate court partly allowed the appeal, maintaining the conviction and compensation but setting aside the default sentence. The applicant filed the present revision.
Finding of the Court:
The court found that the evidence and circumstances did not rebut the presumption under section 139 of the Negotiable Instruments Act, 1881. The court noted that the applicant's defense did not probablise the defense and that the complaint lodged by the applicant further supported the respondent's case.
Issues: The issues revolved around the rebuttal of the presumption under section 139 of the Negotiable Instruments Act, 1881, and the applicability of section 269-SS of the Income Tax Act to the loan transaction.
Ratio Decidendi: The court held that the evidence and circumstances did not probablise the defense, and the complaint lodged by the applicant supported the respondent's case. The court also clarified that a loan advanced in cash in contravention of section 269-SS of the Income Tax Act is not an illegal transaction and is thus not a debt unenforceable in law.
Final Decision: The revision was dismissed, and the applicant was ordered to surrender within 10 weeks.
2. The applicant in this revision is the original accused in Criminal Case No. 179/N/1997/D which was filed in the Court of Judicial Magistrate First Class at Margao by the present respondent No. 1, for an offence punishable under section 138 of the Negotiable Instruments Act, 1881. The complaint had been filed by respondent No. 1 on the ground that from time to time, he had given to the present applicant a loan totalling Rs. 11,20,000-00 (Rupees Eleven Lakhs Twenty Thousand only) and the present applicant towards the discharge of his liability to pay the aforesaid amount of loan had issued him seven cheques drawn on two banks. On presentation of the said cheques, the cheques were returned back unpaid to the respondent No. 1 because of insufficiency of funds.
3. The learned Judicial Magistrate First Class, Margao, explained the particulars of the offence to which the present respondent No. 1 pleaded not guilty and claimed to be tried. During the trial, the applicant examined himself in support of his case. The applicant/original accused examined himself and two other defence witnesses. The defence of the applicant/original accused was that the respondent No. 1 had represented that he was dealing with petroleum business in which there was huge profits. The respondent No. 1 had requested the applicant to sign the cheques, which were blank and without date and amount for the business of respondent No. 1. The applicant had stated that he had not received any loan from respondent No. 1 and had obtained the said cheques from the applicant when the applicant was in an intoxicated condition after having consumed alcohol.
4. The learned trial Magistrate found that the applicant/original accused had failed to rebut the presumption which was raised under section 139 of the Negotiable Instruments Act, 1881, and, therefore, convicted the applicant and sentenced him to undergo simple imprisonment for a period of 3 months and to pay compensation of Rs. 12,00,000/- to the respondent No. 1 within 3 months or in default of payment of compensation to undergo further 3 months simple imprisonment. The present applicant being aggrieved by the said judgment of the learned trial Magistrate filed Criminal Appeal No. 32/2000 before the Additional Sessions Judge, South Goa, Margao. The learned Appellate Court by its judgment dated 31st July, 2001, partly allowed the appeal. The learned Appellate Court maintained the conviction and sentence as well as the order awarding compensation of Rs. 12,00,000/- to the respondent No. 1 but set aside the sentence imposed by the trial Magistrate in default of payment of compensation. Being aggrieved by the judgment of the Appellate Court upholding the conviction and sentence and awarding of compensation, the applicant has filed the present revision.
5. I have heard Mr. A.F. Diniz, the learned Advocate appearing on behalf of the applicant. I have also heard Mr. S.G. Bhobe, the learned Advocate appearing on behalf of the respondent No. 1/Original Complainant and Mr. A.P. Lawande, the learned Public Prosecutor appearing on behalf of the State/respondent No. 2.
6. Mr. A.F. Diniz, the learned Advocate appearing on behalf of the applicant has contended before me that the two courts below have not taken into consideration certain circumstances which can be pressed into aid along with the testimony of the applicant and the other two defence witnesses for rebutting the presumption under section 139 of the Negotiable Instruments Act, 1881. According to him, the circumstances are :-
(i) The respondent No. 1 admits to have advanced the loan of Rs. 11,20,000/- to the applicant in cash on various dates. According to him, therefore, this itself appears to be improbable.
(ii) The respondent No. 1 had advanced loan and had obtained a cheque from the applicant as a security for the repayment of loan and despite having o
