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2008(2) Bankmann 475 (Bom.)
BOMBAY HIGH COURT
N.A. Britto, J.
Bernard Gracias —Appellant
versus
Smt. Trinidade D’Silva —Respondent
Criminal Appeal No. 76 of 2006
Decided on 27.8.2008
Counsel for the Parties:
For the Appellant:Mr. P.S. Rao, Advocate.
For the Respondent:Ms. Amira Razaq, Advocate.
IMPORTANT POINT
Though rebuttal is not to be conclusively established but such evidence must be adduced in support of defence that court must either believe the defence to exist or consider its existence to be reasonable probable, standard of reasonability being that of prudent man.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Dishonour of cheque—Order of acquittal on findings that debt was not legally enforceable debt as it was time barred—Appeal—Cheque dated 20.11.2003 for Rs. 1,75,000 was stated to have been issued towards repayment of amount borrowed by accused from complainant—Though complainant was unable to recollect the date when money was paid by him to accused, accused herself produced a receipt dated 3.3.2001 by which accused had admitted having received a sum of Rs. 1,00,000 on 3.3.2001—Complainant produced his bank pass book to show that a sum of Rs. 85,000 was debted on 3.3.2001 in favour of accused through cheque—Complainant admitted that cheque in question was filled by him but nothing to suggest that it was filled in by him after accused had signed it—Inference would be that complainant had filled it and accused then signed it—Question was whether accused had discharged burden cast upon accused to prove that subject cheque was issued without there being any debt or liability—Case of accused was rather inconsistent and self contradictory and some could not be accepted in rebuttal of presumption available to complainant—Trial Court was not justified in acquitting accused—Respondent accused was liable to be convicted under section 138 of NI Act. (Paras 16 to 18 , 22 and 23)
Result: Appeal allowed.
N.A. Britto, J.—This is complainant’s appeal and is directed against judgment dated 6.5.2006 of the learned JMFC, Canacona, by which the accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881.
2. The dispute between the parties is regarding the dishonour of cheque No. 411255 dated 20.11.2003 for Rs. 1,75,000 given by the accused.
3. The case of the complainant, in brief, is that the complainant had advanced a sum of Rs.1,85,000 to the accused, namely, a sum of Rs. 1,00,000 by cash and Rs. 85,000 by cheque and when the complainant demanded the said sum from the accused, the accused paid an amount of Rs.10,000 and gave the subject cheque for the balance amount which was deposited by him with his bankers namely Syndicate Bank at Canacona only to be informed on the same date that the drawer had stopped payment. The complainant therefore addressed a notice dated 21.11.2003 by registered post demanding the said amount of Rs. 1,75,000 with interest at the rate of 18% per annum within 15 days. However, the said notice was returned to the complainant with postal endorsement ‘intimated, addressee unclaimed, return to sender’. In support of the complaint, the complainant examined himself and Sudakar Shanbagh/PW2 besides producing the documents.
4. On the other hand, the case of the accused, in her statement recorded under Section 313 of the Code of Criminal Procedure, 1973 is that she had not issued the subject cheque to the complainant but she had given a blank cheque to Yakub Khan as security and the said Yakub Khan had given to the accused Rs.1,00,000 and when she learnt that the said Yakub Khan had brought the money from the complainant, the said Yakub Khan told her to pay the money to the complainant and thereafter she paid the said sum to the complainant in the presence of two witnesses and the complainant gave her a statement showing the receipt of money. The said statement was produced as Ex. 56.
5. The accused also examined the said Sudakar Shanbagh DW1 as her witness and produced some documents. The accused also examined Sayad Sabid/DW2, a Branch Manager in-charge of Citizen Co-operative Bank, Canacona and also examined herself as DW3.
6. The accused in her evidence stated that she paid a total amount of Rs.1,41,500 to the complainant on being told by the said Yakub Khan. Incidentally, it may be stated at this very stage that this was not her case either in cross-examination of the complainant or her statement under Section 313 of the Code. She reiterated that at the time of the said payment, there were two witnesses present namely Joaquim Fernandes and Ignatius Fernandes, being her cousins.
7. The learned trial Court observed that the complainant had not referred to the payment by cheque of Rs. 85,000 on earlier occasion, and, therefore the said payment added suspicion to the case of the complainant and further held that the said story was a new story put forwarded by the complainant which was not there in the notice of demand. The learned Magistrate took note of the admission by the complainant that he had written the body of the cheque which was signed by the accused and came to the conclusion that it amounted to material alteration of the cheque which was impermissible and considering the other anomalies in the evidence of the complainant proceeded to acquit the accused as aforesaid. He also concluded that the debt was not legally enforceable debt as it was time barred.
8. Counsel on behalf of the complainant has submitted that the learned trial Court gave a go-bye to the presumptions which were available to the complainant in terms of Sections 118 and 139 of the Negotiable Instruments Act, 1881. Learned counsel further submits that the accused had admitted payment of Rs.1,00,000 by receipt dated 3.3.2001 which the accused herself had produced and moreover the cheque given by the complainant to the accused in the sum of Rs. 85,000 was also dated 3.3.2001 and therefore there wa
