Judgment:
N.A. Britto, J.
1. This is Complainant's appeal and is directed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 23-9-2005.
2. The complaint was filed by the Complainant with the allegation that the Complainant had advanced an amount of Rs. 1,00,000/- to the accused in the month of May, 2002 by way of a loan which the accused had promised to repay with interest at the rate of 18% per year. It was further alleged by the Complainant that inspite of oral request to the accused to repay the said loan along with interest the accused failed to repay the same but by way of repayment issued two cheques in favour of the Complainant due towards principal amount. The case of the Complainant was that cheque No. 615602 dated 5-5-2002 for Rs. 50,000/- drawn on Goa State Co-operative Bank, Margao, when presented for payment was returned dishonoured on 14-5-2002 with endorsement that the funds were insufficient whereupon the Complainant issued a notice dated 19-5-2003 to the accused demanding payment within a period of fifteen days which the accused neither replied nor complied. The Complainant examined his wife and attorney in support of the complaint.
3. The case of the accused was that he never took any loan from the Complainant nor had issued any cheque in favour of the Complainant. It was the case of the accused that somewhere in the year 2001, Avelina Fernandes, who admittedly is a niece of the Complainant, along with the accused wanted to purchase a plot of land for which the accused had issued two cheques for a sum of Rs. 50,000/- each keeping the remaining portion blank and had handed them over to the said Avelina Fernandes for the purpose of security. The accused gave his own evidence in 3 examined two witnesses and besides produced the counterfoils of the cheques from numbers 615601 to 615625 which included the counterfoil of the subject cheque No. 615602 and which counterfoils show, as noted by the learned Additional Sessions Judge, that the first cheque No. 615601 was issued on 20-10-2001 and the last cheque No. 615625 was issued on 17-4-2002, and which would show that the cheque book containing the said cheque numbers was utilized by the accused from October, 2001 to April, 2002.
4. The learned Magistrate by Judgment dated 27-4-2005 had convicted the accused but the accused came to be acquitted by the impugned Judgment of the learned Additional Sessions Judge. Counsel on behalf of the parties have not been able to throw any light as to what happened to the other c heque.
5. As already stated, the Complainant examined his wife and attorney in support of the complaint and it has been observed by the learned Additional Sessions Judge that she was not at all acquainted with the facts of the case, a conclusion which cannot be faulted. There could be no dispute that she could have deposed as an attorney of her husband, the Complainant, on facts which were to her knowledge and those which she could derive from the records but not those which were to the knowledge of the Complainant himself, as held by this Court in the case of Dr. Pradeep Mohanbay v. Minguel Carlos Dias 2002 DCR 35. It was held therein that in a complaint case a power of attorney was entitled to appear as a witness and depose in respect of facts which are within his knowledge and on the basis of the record on which reliance was placed.
6. As rightly pointed out by the learned Additional Sessions Judge it is difficult to accept that in case the loan was given in the first fortnight of May, 2002, that the accused gave cheque dated 5-5-2002. The learned Additional Sessions Judge has further observed, and in my view rightly, that in case the loan was given in May, 2002, and the cheque towards repayment was given on 5-5-2002 the Complainant could not have made repeated oral requests to repay the same. In case the Complainant had approached the accused for the repayment of the loan, and admittedly the accused was residing in the very building where the said Avelina Fernandes was residing she also would have known on which floor his residence was situated. It is not only that the Complainant's attorney did not know the facts of the case, but it appears that the Complainant did not know how to proceed with her case, for, it has been observed, and again in my view rightly, that the Complainant did not produce cheque dated 5-5-2002 for the dishonour of which the complaint was based but had produced cheque dated 5-5-2003, and that too even without producing the original of it and without assigning any reason for its non production. Likewise, the Complainant had also not produced the cheque returned memo of the subject cheque that is to say cheque bearing No. 65102 dated 5-5-2002 but had produced cheque returned memo of cheque No. 012675 dated 14-5-2003. In the light of such blatant infirmities in the procedure followed, the accused certainly could not have been convicted in a criminal case.
7. That apart, the accused had sufficiently proved by preponderance of probabilities that the subject cheque could not have been issued on 5-5-2002 as rightly noted by the learned Additional Sessions Judge. The accused had proved by the production of the counterfoils of cheque numbers from 615601 to 615625 that those cheques were exhausted before April, 2002, and that being the position, it is the explanation which was given by the accused which appeared to be more probable. Once that was done, it was for the Complainant to have proved that indeed the Complainant had advanced a sum of Rs. 1,00,000/- to the accused which the Complainant had failed to prove.
8. The prosecution was conducted by the Complainant in a most casual manner. From whatever angle one looks at the case of the Complainant, the same was bound to fail either on account of procedural infirmities committed by the Complainant by non production of relevant documents and also upon the failure of the Complainant to prove the consideration, once the presumption available to the Complainant was sufficiently rebutted by the accused by leading defence evidence.
9. In the light of the above, I find there is absolutely no merit in this appeal and consequently the same is hereby dismissed. Bail Bonds, if any, shall stand discharged.