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2010(2) Bankmann 537 (Bom.)
BOMBAY HIGH COURT
N.A. Britto, J.
Devarsha Dnyaneshwar
Parob —Petitioner
versus
Mulgao Sirigao Advalpal, V.K.S.
Society Ltd and Anr. —Respondents
Criminal Revision Application No. 47 of 2009
Decided on 9.4.2010
Held: It is now well settled that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. The question as to whether the presumption is rebutted or not must, therefore, be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the accused is not imperative.
This is a case where the entire case of the complainant was based on the evidence of the complainant’s witness as against that of the accused. Both the Courts below have not assigned any reason as to why a bald statement of the complainant’s witness, when it could have been substantiated with documents, was preferred to the bald statement given by the accused, which could not be substantiated. Witnesses are entitled to the same degree of credibility whether of the complainant or of the accused. The accused in this case by raising the plea in the reply filed to the statutory notice and by giving her own evidence had sufficiently proved that her defence was probable. In other words, the accused had discharged the initial burden which was on her that consideration was improbable. The complainant neither in the notice, nor in the complaint nor the affidavit in evidence filed on behalf of the complainant had disclosed that the liability was towards a loan taken of Rs.50,000 by the husband of the accused, and if that was so, on which date it was taken or the terms of its disbursement or whether any document of guarantee was executed by the accused were also not mentioned. It is only in the cross-examination of the complainant’s witness that he stated that the husband of the accused had taken a loan from the complainant society in the sum of Rs.50,000, even without specifying the date on which it was taken or the terms on which it was sanctioned. (Paras 9 & 10)
Considering the facts of the case, the accused had established that the plea taken by her was probable, and thus it was then for the complainant to prove, that there was indeed liability on the part of the accused towards the loan taken by her husband for the repayment of which the subject cheque was given by the accused. This the complainant failed to prove. This is a fit case to draw adverse inference against the complainant for non production of loan documents in spite of the plea taken by the accused in her reply to the notice that there was no transaction between the accused and complainant and the subject cheque was given as security. The approach of both the Courts below in appreciating the evidence produced is grossly erroneous. (Para 13)
N.A. Britto, J.— This revision is directed against the judgment/order dated 19.8.2009 of the learned Additional Sessions Judge, Mapusa by which the learned Additional Sessions Judge has upheld the judgment/order dated 12.3.2009 of the learned JMFC, Bicholim, convicting and sentencing the petitioner under Section 138 of the Negotiable Instruments Act, 1881.
2. The complainant is a Co-operative Society. The husband of the accused was a Secretary of the said Society during the tenure of one Patel, who was/is Chairman. The case of the complainant is that the accused gave a cheque to the complainant dated 27.7.2005 for Rs.1,00,000 towards part repayment of the amount due by way of liability towards the complainant is the account No.28 of the said Dnyaneshwar Parob and when the complainant deposited the said cheque in the Goa State Co-operative Bank Ltd., Bicholim, it was returned dishonoured on the ground that the funds were insufficient. The complainant, therefore, sent a notice dated 4.1.2006, to the accused to make the payment within 15 days. The accused replied to the said notice, inter alia, stating therein that there was no loan account bearing No.28 in the name of her husband Dnyaneshwar Parob, with the complainant. It was also stated that cheque in question was deposited with the complainant as security/guarantee as the husband of the accused was the Secretary of the complainant-society and there was no transaction between the accused and the complainant and so also between the husband and the accused with the complainant.
3. The complainant examined their Chairman Mr. Tulsidas Parab in support of the complaint. The complainant also examined the Manager of the bank of the accused, to say that the cheque was dishonoured on account of the insufficient funds in the account of the accused. The accused also gave her evidence and in her evidence categorically stated that her husband was working for the complainant-society for about 9 years, prior to two years. She also categorically stated that she had not obtained any loan from the complainant nor had stood as a surety for the accused at any time.
4. The learned Trial Court in her judgment dated 12.3.2009 observed as follows:
“9. No loan documents have been produced by the complainant to prove the alleged loan transaction of the husband of the accused with the complainant society. However, in the cross it is stated by PW1 that Dnyaneshwar Parob, the husband of accused obtained loan of Rs.50,000 from the complainant society and that his parents as well as the accused were the guarantors to the said loan transaction. As stated by PW1, said loan was repayable for (sic. after) a period of five years. There is no documentary evidence in support of such testimony of PW1. Further according to PW1, the complainant society had sent a notice to the accused in respect of the said loan, she being one of the guarantors. But the said notice is also not produced by PW1.”
Note: The notice was in fact produced.
5. The learned Additional Sessions Judge also observed that:
“In this context, learned trial Judge is right in observing that no documentary evidence is produced on record by PW1 to substantiate the above stand of complainant society but it is material to note that in his cross-examination, PW1 had made it clear that the in-laws of the accused as well as the accused are the guarantors to the loan of Rs.50,000 obtained by the husband of the accused from the complainant society.”
The learned Additional Judge further noted that:
“It may be mentioned here, that when PW 1 showed his willingness to produce the records to show that the husband of the accused had obtained loan from the complainant society, the accused did not request the Court to direct PW1 to produce such records and therefore in the absence of such request the suggestion put to PW1 that Dnyaneshwar has not obtained any loan from the society, is of no significance.”
The learned Additional Sessions Judge further obs
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