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2005(1) Bankmann 439
BOMBAY HIGH COURT
N.A. Britto, J.
Suresh Shetye — Appellant
Versus
Shri Prasad Khalidas
Divakar & another — Respondents
Criminal Appeal No. 11 of 2004
Decided on 2-12-2004
Counsel for the Parties:
For the Appellant:Shri V. Menezes, Advocate.
For the Respondent No. 1:Shri S.D. Lotlikar, Senior Advocate with Ms. K. Sambari, Advocate.
For the Respondent No. 2: Shri S.N. Sardessai, Public Prosecutor.
IMPORTANT POINT
The trial Court has rightly acquitted the accused on the conclusion that the complainant had failed to prove that the accused owed any debt or liability to be paid by the accused.
Headnote:Negotiable Instruments Act, 1881—Sections 138, 139, 118—Cr.P.C. 1973—Section 313—Cheques given as security for friendly loan—Loan paid—Cheques presented returned with remarks “A/c closed”—Prosecution—Acquittal—Appeal against acquittal—Submission that entire case of the accused was based on the documents produced by accused during his statement under Section 313 Cr.P.C.—Whether correct? (No)—Appeal dismissed—Case law referred.
Held: In my view the submission that the entire case of the accused was based on the documents produced by the accused in his statement under Section 313 of the Code cannot be accepted. As already noted the accused also had produced the said note dated 23.9.1997 (Exh.CWI/A-l), the execution of which the complainant had admitted. On this note the complainant had clearly mentioned that the accused owed to him Rs. 13,000/- towards interest and in case the said amount was not paid on the next date the complainant would deposit the cheques in the Bank. The said writing/note clearly indicated that the contention of the accused that the cheques were given by way of security could not be ruled out. The other documents namely the application for anticipatory bail dated 14-9-1998 and so also other complaints produced by the accused dated 12-2-1998 and 13-2-1999 against the complainant were sufficient to rebut the presumption as regards the date ‘on the cheque’. In fact, it was rightly observed by the learned J.M.F.C. that the said complaints indicated that the complainant and the accused were not sharing good vibes and their relations were not excellent between the period from February, 1998 to December, 1998 and therefore the version of the complainant that the loan was given in December, 1998 is unbelievable. Although the complainant had denied that the accused had not given any other cheque besides the cheques at Exh. CW.l/A-l, the accused had produced the said statement from Mapusa Urban Cooperative Bank which clearly showed that between 24-4-1996 and 2406-1997 an amount of Rs. 1,15,000/- was paid by cheques to the complainant by the accused and when the complainant was further cross-examined with reference to the said payments by cheques, all that the complainant stated was that he did not remember whether the accused has paid the said amounts to him by cheques or not.
In my view the circumstances appearing against the accused could be explained by the accused not only by oral answers given by him but also could .be explained with the help of documents which are unimpeachable or reliable. There is nothing in the Code to shrink the scope of such explanations only by way of oral answers and the explanations could also be given by way of documents, authenticity of which cannot be doubted. That was precisely what was done by the accused in this case by producing the said documents such as statement of his bank account and other documents. In fact, the complainant did not make any grievance regarding the genuineness of the documents produced by the accused either before the trial Court or this Court.
In view of the above, the acquittal of the accused could not be faulted. I find there is no merit in this appeal and consequently tile same is hereby dismissed. (Paras 9, 10 and 11)
Result: Appeal dismissed.
N.A. Britto, J.—This appeal is filed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, (The Act, for short) by Judgment/Order dated 12 November, 2003 of the learned J.M.F.C., Mapusa.
2. The case of the complainant, briefly stated, is that the accused approached him for a friendly loan of Rs.75,000/- which the complainant gave to the accused and the accused in turn gave to the complainant two cheques dated
31-3-1999 for Rs. 50,000/- and dated
30-4-1999 for Rs. 25,000/-, which cheques the complainant deposited in Goa Urban Co-operative Bank, Mapusa, but they were returned with the endorsement “Account Closed” dated
29-7-1999. The complainant then sent a legal notice dated 5-8-1999 demanding the payment of the said Rs. 75,000/- within 15 days which notice was returned to the complainant with the endorsement ‘Unclaimed returned to sender’ on 19-8-1999. Thereafter the complainant filed the complaint.
3. The complainant examined himself and, inter alia, produced the said two cheques, memorandum for the return of the said two cheques, postal receipt, notice dated 5-8-1999, etc. The accused also produced through the complainant a note written by the complainant to the accused on an envelope (Exh. CW1/A1).
4. The case of the accused was that he had obtained a friendly loan not in the year 1995, but in the year 1998 and the cheques given by him were in the year 1995 and they were by way of security for the said loan and the same were given without date and name having been written on the same. The accused further stated that his account in Mapusa Urban Co-operative Bank was closed in the year 1997 and the said cheques were returned because the account was closed. The accused further stated that he had paid the full amount of the loan along with interest and he was not liable to pay any amount to the complainant either on 31-3-1999 or 30-4-1999, being the dates of the said two cheques and that the said complainant had misused the said two cheques which were given by way of security for the said loan of Rs. 75,000/-. The accused also stated that serial numbers of the said two cheques pertained to the series of cheques of the year 1995-96 of the Bank when he had paid the loan in instalments. The accused along with the said statement recorded under Section 313 of the Code of Criminal Procedure 1973 (Code for short) produced the statement of his account Nos. 40616 and 317331. The accused also produced a certificate from the Mapusa Urban Cooperative Bank to show that the said Account No. 40016 was closed on 9.10.1997. The accused also filed a copy of the complaint dated 13.2.1998 addressed to the Police Inspector wherein the accused had alleged that the complainant had refused to return the cheques with intention to harass him. The accused had also produced an anticipatory bail application filed by him on 14.9.1998 which was registered as A.B.A. No. 344/98 in the Court of Sessions.
5. The learned J.M.F.C. after considering the evidence of the complainant in the light of the documents produced by the complainant as well as the documents produced by the accused along with his said statement under Section 313 of the Code including the said writing/note written by the complainant to the accused and which was produced through the complainant, came to the conclusion that the complainant had failed to prove that the accused owed any debt or liability to be paid by the accused and therefore proceeded to acquit the accused under Section 138 of the Act.
6. The main contention of Shri Menezes, the learned Advocate appearing on behalf of the complainant in this appeal, is that the statement recorded under Section 313 of the Code is no evidence and if the documents produced by the accused along with his said Section 313 statement are taken out, then the case of the complainant ought to have been held as proved with the aid of the presumptions available in favour of the complainant under the Act. Shri M
