| SooperKanoon Citation | sooperkanoon.com/1144814 |
| Court | Mumbai Goa High Court |
| Decided On | Feb-12-2014 |
| Case Number | Criminal Appeal No. 45 of 2011 |
| Judge | THE HONOURABLE MRS. JUSTICE MRIDULA R. BHATKAR |
| Appellant | Sunil Thukral |
| Respondent | Tolu @ Tulo Puno Velip and Another |
Excerpt:
negotiable instruments act, 1881 - section 138 창€“ non-repayment of loan 창€“ denial of liability - dishonor of postdated cheque - respondent/accused approached complainant for loan on condition that he would repay said amount within a period - respondent/accused issued a postdated cheque, which was deposited by complainant, but it was dishonored for want of sufficient funds - complainant demanded said amount due to him and said liability was denied by respondent - complainant thereafter lodged criminal case and magistrate dismissed said complaint and respondent was acquitted from offence punishable under section 138 of the act, 1881 - hence, this appeal issue is 창€“ whether appeal preferred by petitioner/complainant against judgment and order passed by magistrate, acquitting respondent/accused for offence punishable under section 138 of the act, 1881 is maintainable court held - courtview that respondent has rebutted presumption in favor of complainant -thus, complainant has in fact failed to prove truthfulness of repayment of loan and demand made by him for repayment of said amount - if at all, such transaction is not proved under section 138 of the act, 1881 complainant cannot stand in the course of law - finding given by magistrate is to be maintained and it is confirmed - accused though has not stepped in the box and has not adduced any evidence by way of cross-examination and by way of documentary evidence, which are notices and so also by pointing out circumstances, created a doubtful situation regarding genesis of transaction and defense of accused is improbable - appeal dismissed. para 14 case referred: anil, s/o. baburao dange versus narayansingh, s/o. budsingh rajput reported in 창€“ (cdj 2008 bhc 968). mr. krishna morajkar v/s. mr. joe ferrao and state of goa, in criminal appeal no.6 of 2012, jayantilal m. jain v/s. j.m. sons and ors. reported in 1991 (3) bcr 694 rangappa v/s. mohan reported in 2010 air scw 2946 v.s. yadav v/s. reena in +crl. a. no.1136 f 2010 tarmahomed haji abdul rehman v/s. tyeb ebrahim bharamchari reported in 1949 blr 51 219 nishith m.p. verlekar v/s. ashpaque marfani reported in 2009 all mr (cri.) 1001 anjana balkrishna shewale v/s. chayya baban jagdale and anr. reported in 2008 all mr (cri.) 2694, wherein shri vinay parulekar v/s. shri pramod meshram reported in 2008 all mr (cri.) 461. mallavarapu kasivisweswara rao v. thadikonda ramulu firm and ors., 2008 (8) scale 680, oral judgment: 1. this appeal is preferred by the original complainant against the judgment and order dated 19/01/2011 passed by the learned judicial magistrate first class at panaji in criminal case no.oa 107/09/c, thereby acquitting the respondent/accused from the offence punishable under section 138 of the negotiable instruments act of 1881. 2. it is the case of the original complainant that in the month of february, 2008, the respondent/accused approached the complainant for loan of rs.5,00,000/- (rupees five lacs only) and therefore on 26/02/2008, the original complainant gave him loan of rs.5,00,000/- (rupees five lacs only) on condition that he would repay the said amount within a period of 6 months and if not paid he would pay interest at the rate of 5% on the said amount. at the relevant time, i.e. on 26/02/2008, the original complainant and the respondent/accused entered into an agreement in which the respondent/accused had acknowledged the debt of rs.5,00,000/- (rupees five lacs only) and also acknowledged the repayment of the said loan with interest. the respondent/accused issued a postdated cheque dated 26/08/2008, bearing no.583394 of rs.5,00,000/- (rupees five lacs only) drawn on state bank of india, canacona branch, goa. the said cheque was deposited by the original complainant, but it was dishonoured for want of sufficient funds. the complainant therefore sent legal notice to the respondent/accused and demanded the said amount due to him. however, the said liability was denied by the respondent/accused by replying to the said notice. the original complainant thereafter lodged criminal case in the court of judicial magistrate first class, panaji, goa under section 138 of the negotiable instruments act. the said case was tried by the learned magistrate and it was concluded in dismissal of the said complaint and the respondent/accused was acquitted from the offence punishable under section 138 of the negotiable instruments act. hence, this appeal. 3. learned counsel for the original complainant/appellant has submitted that the learned judge while appreciating the evidence on the point of facts and also law has committed error and especially on the point of not properly appreciating the presumption under section 139 of the negotiable instruments act. he submitted that the learned trial court did not frame the points of determination as per the requirement of law under section 138 of the negotiable instruments act. it was necessary for the learned trial court to frame point of determination on the point in respect of the proof of ingredients of section 138 of the negotiable instruments act. however, the learned judge has framed only one point as to whether the complainant could prove that the accused has issued the cheque towards the discharge of his liability or not. the learned counsel has submitted that the learned trial court did not consider that the complainant has discharged his burden of proving that the loan of rs.5,00,000/- (rupees five lacs only) was accepted by the respondent/accused. the trial court ought to have accepted the contents in the agreement dated 26/02/2008, which is marked at exhibit 31. he referred the statutory notice dated 1/12/2008 and also reply given to the notice dated 3/02/2009, marked exhibit 37. learned counsel argued that the learned trial judge has erroneously mixed up the other transactions of land dealings which had taken place between the original complainant and the respondent/accused. the respondent/accused had mortgaged a land with the bank and the original complainant wanted to buy the said mortgaged land. original complainant had entered into an agreement of sale in respect of the said mortgaged land, where the respondent/accused was a co-owner. the learned counsel has submitted that the trial judge has erred in holding that the original complainant was not having the financial capacity to give loan of rs.5,00,000/- (rupees five lacs only) in february, 2008. the learned trial court gave wrong finding that in view of section 269 ss of the income tax act, a person who gives loan is bound to disclose the accounts to the income tax authority. the learned counsel submitted that the admission given by the original complainant on the point that he did not file returns and did not show amount of rs.5,00,000/- (rupees five lacs only) loan is wrongly appreciated by the learned trial court. he submitted that the bar of section 269 ss of the income tax act is not against the giver, but it is against the taker. to substantiate this, he relied on the judgment of jayantilalm. jain v/s. j.m. sons and ors. reported in 1991 (3) bcr 694. he further relied on the judgment of the single judge of bombay high court at goa bench in mr. krishna morajkar v/s. mr. joe ferrao and state of goa, in criminal appeal no.6 of 2012, which was pronounced on 19/07/2013 in which the learned judge has held that the provisions of section 269 ss and so also 271 d of the income tax act have absolutely no bearing in respect of ascertaining the fact of legally enforceable liability of the accused. the learned counsel on the point of shifting of onus and the presumption under section 139 and 118 of the negotiable instruments act relied on the evidence and the cross-examination of the complainant. the complainant has examined himself to prove his case, and he was cross-examined by the respondent/accused. no evidence was tendered by the accused. it was argued that the complainant has proved his case on the point of giving loan, acceptance of the loan, issuance of the cheque, dishonouring of the cheque and so also on the point of issuing statutory notices. thus, by tendering the oral as well as documentary evidence he has proved all the ingredients under section 138 of the negotiable instruments act. he submitted that the respondent/accused in the cross-examination has put some suggestions to the appellant. the suggestions were given in respect of the other transaction which have admittedly taken place between the respondent/accused and the complainant on 26/02/2008. the said transaction is not denied by the original complainant. however, if at all the original respondent has adopted the defence that the cheque of rs.5,00,000/- (rupees five lacs only) was given by way of security in respect of the other transaction or was stolen, then it is obligatory on the part of the respondent/accused to lead evidence to discharge that burden. learned counsel has submitted that once the complainant has proved all the ingredients under section 138, then it is obligatory on the part of the respondent/accused to dislodge his case either by eliciting admissions in the cross-examination or by adducing an independent evidence which will dislodge the case of the original complainant. mere suggestions given to the party are valueless to form any concrete and substantial defence. he pointed out that the respondent/accused though has referred and relied on agreement of sale in respect of the mortgaged land, he did not produce the said agreement of sale before the court. similarly, reply given to the notice dated 10/04/2008 i.e. exhibit 38 is also not proved, but only produced when his statement was recorded under section 313 of cr.p.c. mere production of the document cannot take place of the proof. in support of his submission he relied on the unreported judgment of the delhi high court in the case of v.s. yadav v/s. reena in +crl. a. no.1136 f 2010, which was pronounced on 21/09/2010. if the reliable evidence is produced by the complainant, then the presumption under section 139 of the negotiable instruments act stands in favour of the original complainant and, thus, the onus shifts on the accused to show that due to certain facts or transactions the loan was not a legally enforceable liability. he relied on the judgment of the learned three judges of the hon'ble supreme court in rangappav/s. mohan reported in 2010 air scw 2946. the learned counsel submitted that assuming that both the parties i.e. the complainant and the accused in the case fail to prove their respective case under the negotiable instruments act, then in that event the presumption which is in favour of the complainant shall prevail. in support of his submissions, he relied on the judgment of tarmahomedhaji abdul rehman v/s. tyeb ebrahim bharamchari reported in 1949 blr 51 219. he prayed that the judgment of the learned magistrate be set aside and respondent be convicted. 4. per contra, learned counsel for the respondent has submitted that the order of acquittal passed by the learned judge is well reasoned and the findings given by the learned judicial magistrate first class are correct. she submitted that the circumstances, if at all considered on the basis of the evidence of the complainant then the question arises as to why the complainant should pay big amount of rs.5,00,000/- (rupees five lacs only) to the accused? she read over the relevant portion in the cross-examination of the complainant where complainant has given admission that the accused was known to him through one virendra divkar and he did not have earlier acquaintance with him. she further raised another doubt that if at all there was a land dealing between the parties and consideration of rs.6,00,000/- (rupees six lacs only) towards the land was paid by the complainant to the respondent and others, who were the co-owners of the said land by satisfying the mortgaged debt of rs.1,81,000/- (rupees one lac eighty one thousand only), then why the amount of rs.5,00,000/- (rupees five lacs only) was paid to the respondent. if some amount by way of consideration was received by the respondent/accused then he was not in need of money to raise loan of the amount of rs.5,00,000/- (rupees five lacs only). learned counsel further submitted that the complainant has failed to prove his financial capacity to lend amount of rs.5,00,000/- (rupees five lacs only) at the relevant time. she further pointed out that in the cross-examination complainant has admitted that certain amount was contributed by his father, certain amount was contributed by his sister when he gave the amount of rs.5,00,000/- (rupees five lacs only) to the complainant. she submitted that if at all the complainant himself was required to borrow or ask for money to give the amount towards the loan, this itself is damaging to the case of the complainant. the learned counsel has submitted that no documentary evidence like passbook or bank statement is produced to prove the fact of his financial position and how the payment of rs.5,00,000/- (rupees five lacs only) was made by the complainant; as the payment was made in cash. it was contended that the accused has denied the agreement dated 26/02/2008 at exhibit 31 in the cross-examination of the complainant and, therefore, it was not necessary for the accused to step in the witness box and adduce further evidence to discharge his burden of rebutting the presumption which stood in favour of the complainant. learned counsel in support of her submissions has relied on the judgment of the bombay high court in anjanabalkrishna shewale v/s. chayya baban jagdale and anr. reported in 2008 all mr (cri.) 2694, wherein it was held in paragraph 3 of the judgment by the learned judge that no prudent person will borrow such huge amount to pay installment thereon so as to help a friend. on the same point, she also relied on the judgment in the case of nishithm.p. verlekar v/s. ashpaque marfani reported in 2009 all mr (cri.) 1001. in the said case, whether the complainant was in a position to advance the large sum of money was doubted by the hon'ble judge and has considered that the defecne adopted by the accused raising question in respect of the financial capacity of the complainant cannot be rejected outright. learned counsel on the point of proof or on the point of discharging the burden of the rebuttal in respect of presumption under section 139 of the negotiable instruments act has relied on the judgment of shrivinay parulekar v/s. shri pramod meshram reported in 2008 all mr (cri.) 461. 5. in the present case, the issue mainly revolves round as to whether the complainant has discharged the burden to prove the legally enforceable debt was due from the accused or not. the learned counsel of both the sides have relied on the various judgments of this court and of the hon'ble supreme court. the proposition of law in respect of section 138 and 139 of the negotiable instruments act is now settled by the catena of judgments. section 138 of the act was enacted with an object to improve the credibility of transactions by the negotiable instruments and to facilitate the bank transactions in a smooth manner. it is experienced that recourse of criminal trial is preferred to civil trial as it does not require to pay court fees and it is quicker. however, the section is penal with severe consequences and therefore the section warrants a strict construction on the proof of the facts. if at all the ingredients under section 138 are proved by the complainant then presumption under section 139 of the act stands in his favour. section 139 reads as under: 139. presumption in favour of holder “ it shall be presumed , unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. the words that œunless contrary as proved? though are used in the section the degree of the proof is not expected to be beyond reasonable doubt or it does not call for strict proof of the facts?. for the purpose of rebuttal of the presumption, the standard of proof of the facts is required by applying the rule of preponderance of probabilities. when it is said a fact is proved it means that it is legally and judicially believed by the court and presumption is an additional support given to such acceptance. the presumption under section 139 is a similar provision like section 118 of the negotiable instruments act. on this point, i rely on the ratio laid down in the case of rangappav/s. mohan (supra) at paras 12 and 14 which reads as under: 12. the respondent-claimant has also referred to the decision reported as mallavarapukasivisweswara rao v. thadikonda ramulu firm and ors., 2008 (8) scale 680, wherein it was observed: œunder section 118(a) of the negotiable instruments act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. it is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. ...? 14. in light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the act does indeed include the existence of a legally enforceable debt or liability. to that extent, the impugned observations in krishna janardhan bhat (supra) may not be correct. however, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. as noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. however, there can be no doubt that there is an initial presumption which favours the complainant. section 139 of the act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. while section 138 of the act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. however, it must be remembered that the offence made punishable by section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. in such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. keeping this in view, it is a settled position that when an accused has to rebut the presumption under section 139, the standard of proof for doing so is that of `preponderance of probabilities'. therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. as clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.? 6. on the background of this ratio, the evidence tendered by both the parties and the facts of the case are to be assessed. the learned magistrate on the point of financial capacity of the complainant and on the point of legally enforceable liability has held that the complainant did not give account to the income tax authority in respect of loan amount of rs.5,00,000/- (rupees five laacs only) and, therefore, the learned judge has invoked the provision of section 269 ss of the income tax act and held that the said amount was unaccounted and, therefore, it is not a legally enforceable debt or other liability. learned counsel for the appellant/original complainant has taken me to the judgment of the learned single judge in mr. krishna morajkar (supra). the submissions of learned counsel for the complainant that though such amount is not shown in the account or the returns are not filed by the complainant, this provision of section 269 ss, at the most, can be only against the taker and not the giver are accepted. the learned single judge of this high court in the said case held that the provisions of section 269 ss of the income tax act have no bearing and that is not to be taken into account while considering legally enforceable liability or debt due from the enforceable liability and also assuming the facts of financial capacity of the applicant. the said view is correct and hence the findings given by the learned magistrate referring the provision of the income tax act is illegal. however, apart form this finding, the judgment of the learned trial court is to be looked into and to be examined on the basis of the evidence of the parties and the settled position of law. 7. in the present case, the complainant has stepped in the box and has given evidence in respect of the issuance of the cheque, presentation of the cheque, dishonouring of the cheque of rs.5,00,000/- (rupees five lacs only), so also the service of the statutory notice, reply given thereby refusing to make the payment. thus, the complainant has initially proved the fact that he was holder of the cheque of rs.5,00,000/- (rupees five lacs only) and complied the procedure required under section 138 of the negotiable instruments act. the crux of the matter which is required to be answered in the present case is whether the cheque of rs.5,00,000/- (rupees five lacs only) was in fact given by the accused to the complainant towards the hand-loan of rs.5,00,000/- (rupees five lacs only) given by the complainant or not? the respondent/original accused in the cross-examination has brought the facts in respect of one more transaction between the complainant and the original accused. the complainant has admitted that there was a land dealing between the parties and the complainant has paid rs.6,00,000/- (rupees six lacs only) to the accused and the co-owners towards the consideration amount of the said land. out of the said amount the loan of rs.1,81,000/- (rupees one lac eighty one thousand only) was cleared as the said land was mortgaged with the bank. this is admitted by the respondent/original accused in his reply to the notice, exhibit 37. 8. the notices exchanged by the parties throw light on the doubtful part of the case of the complainant. both the parties have admitted a fact that the land dealing has taken place on 26/02/2008 and the parties have entered into an agreement of sale before the notary and the amount of rs.1,81,000/- (rupees one lac eighty one thousand only) was deposited by the complainant to clear the mortgaged land. the truthfulness of the evidence of the complainant can be tested on the basis of the notices. the statutory notice was given by the complainant to the accused on 1/12/2008 marked at exhibit 36. in the said notice, the complainant in paragraph 1 had said that: œ1. in discharge of legally enforceable debt and liability, following through the agreement dated 26/02/2008, which you have entered into with my client, you had issued to my client, a cheque dated 26/08/2008 bearing no.583394 drawn on the state bank of india, canacona branch, canacona goa for a sum of rs.5,00,000/- (rupees five lakhs only) as the part payment of the total amount payable by you to my client.? (emphasis placed) 9. it is to be noted that in the entire notice the complainant has not mentioned anywhere that he has given the loan of rs.5,00,000/- (rupees five lacs only) to the respondent and the said amount of loan is due from him. the entire notice is drafted skillfully that it only refers the agreement dated 26/02/2008. interestingly, on the same date, as per the case of the complainant two agreements were entered into i.e. one for agreement for sale in respect of the land and the second alleged agreement, exhibit 31 was entered into between the complainant and the respondent wherein the respondent has acknowledged the loan of rs.5,00,000/- (rupees five lacs only) which was paid on the same day by the complainant to the respondent. the case of the complainant is that these two transactions are independent transactions and are not connected with each other and therefore in the notice dated 1/12/2008, exhibit 36 there was no reference of the agreement of sale or any other transaction related to loan which had taken place between the complainant and the respondent. on perusal of the said notice, especially para 1, it is found that in the notice nowhere it is mentioned that the said amount was demanded towards the loan of rs.5,00,000/- (rupees five lacs only) given to the respondent. the notice is vague in respect of the contents regarding repayment and interest in the agreement dated 26/02/2008. surprisingly, in paragraph 1, the complainant has made a reference of the 'part payment' of the total amount payable by the respondent to the complainant. this creates a doubt as to why reference of part payment of the total amount payable was made, if at all it was a notice for repayment of loan of rs.5,00,000/- (rupees five lacs only). moreover, though there is a mention on the agreement, exhibit 31 of the interest of 5% of the amount, no demand was made of the 'interest'. it is to be noted that the complainant and the respondent are not friends, but only know each other due to land dealing. thus, it appears that amount of rs.5,00,000/- (rupees five lacs only) was a part payment towards any other transaction and there was no demand for loan as the case of the complainant is. especially, in the absence of specific mention or specific demand that amount of rs.5,00,000/- (rupees five lacs only) was paid towards the loan and therefore the demand was made, the doubt created in respect of the words, œpart payment of the total amount payable? gets stronger. 10. this notice was replied by the respondent by reply dated 3/01/2009. in the reply, the respondent has referred one earlier notice dated 10/04/2008 sent by the complainant to the respondent. he has also referred the agreement dated 26/02/2008. however, in paragraph 3 he made it clear that the same transaction was in respect of the loan and also his family members and the respondent had no title to execute any sale deed and, therefore, the complainant was requested to collect the amount of rs.1,81,000/- (rupees one lac eighty one thousand only) with interest from the respondent within 5/06/2008 to 10/06/2008. though in the notice, exhibit 36, word œagreement? is used and notice, exhibit 38, words œagreement of sale? are used, it is apparent that notice is replied with reference to the agreement of sale dated 26/02/2008. he has denied that there was legally enforceable debt or liability towards the purported agreement dated 26/02/2008. moreover, in paragraph 8, respondent has specifically referred to the contents of the notice dated 10/04/2008 sent by the complainant that the amount was paid towards the entire consideration. the contradiction in contents between the two notices is stark. in the notice dated 1/12/2008, exhibit 36 complainant has stated that amount towards payment in terms of agreement dated 26/02/2008 and the respondent has issued the cheque in favour of the complainant. however, in previous notice dated 10/04/2008, exhibit 38 pointed out by the learned counsel for he respondent, in paragraph 2 the complainant while addressing the respondent has mentioned that the complainant, pursuant to the agreement of sale dated 26/02/2008 had paid the entire consideration in respect of the said property payable to him. thus, there is obvious contradiction in the notices sent by the complainant i.e. exhibit 36 and exhibit 38. the learned counsel for the respondents has correctly pointed out that specific denial though was made by the respondent in the notice reply, exhibit 37 the said denial or the said contention is not at all mentioned in the complaint filed by the complainant before the learned magistrate. the complainant has taken a very clever stand that there were two independent transactions between the parties and therefore the complainant did not mention anything in respect of the other transaction. this submission would have been considered if there would not have been ex facie contradictions in the notices given by the complainant himself to the respondent. the complainant has taken a very tricky stand in the notice which was sent on 1/12/2008. the notice was drafted in such a manner that it suppressed the fact of payment of rs.5,00,000/- (rupees five lacs only) to the respondent towards a loan amount and the demand was made for the repayment of rs.5,00,000/- (rupees five lacs only). 11. the submissions were advanced by the learned counsel for the complainant on the point of rebuttal of presumption and it was argued that when the agreement dated 26/02/2008 i.e. exhibit 31 was relied and proved by the complainant then it was obligatory on the part of the accused to step in the witness box and tender evidence to show that the said document was false. the learned counsel submitted that the complainant has stated that the said agreement was executed by the accused before notary and it was signed by the respondent and also by him. thus, the complainant has heavily relied on the proof of the said document which is a documentary evidence supporting the case on the point of payment of rs.5,00,000/- (rupees five lacs only). the said document is not admitted by the original accused either in the notice or while taking the cross-examination of the witness. indeed, certain admissions sought by the respondent in the cross-examination have created substantial doubt regarding the transactions as claimed by the complainant. the complainant has admitted in the evidence that he knew accused through one virendra divkar. virendra divkar introduced accused to him. the purpose of introduction is also brought on record in the cross-examination that the complainant was interested in purchasing the mortgaged property in canacona and therefore shri divkar introduced accused and thereafter he executed the agreement with the accused in respect of the said property. it was argued that when respondent has denied the execution of the said document then it is his burden to prove that document is forged or fake, as he who asserts, has to prove is a rule of evidence. however, the learned counsel for the complainant has lost a sight of the rule of evidence that the negative burden cannot be cast especially when there is a case of forgery or fake documents. in the case of forgery or a fake document the burden entirely lies on the person who claims that the document is genuine. this positive burden is required to be discharged by the complainant. the admission is sought in the cross-examination that the said agreement at exhibit 31 was executed in the presence of one virendra divkar. the learned counsel for the respondent has rightly pointed out that it was necessary for the respondent to examine virendra divkar or a notary before whom it was executed. if at all the document executed between the two parties is not witnessed by any person, then there was no question of examining the witness. however, when the evidence is available then it is necessary for a party to adduce best and adequate evidence in support of his case. thus, the document, agreement at exhibit 31 which is presented as a documentary evidence of the complainant, though it is exhibited cannot be believed to prove the fact of the acknowledgment of the debt of rs.5,00,000/- (rupees five lacs only) by the respondent. 12. accused has not stepped in the box. the learned counsel for the respondent has submitted that when either of the parties have not proved the fact then if at all there is a presumption then it should reign. the submissions as a proposition of law is correct, however every criminal case is required to be examined, ascertained and decided on the facts of each case and the evidence adduced before the judge. 13. i place reliance on the ratio laid down in the case of shrivinay parulekar (supra), wherein it is held at paras 14 and 15 thus: œ14. upon consideration of various judgments as noted hereinabove, the position of law which emerges is that it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. the accused can raise a probable defence from the material brought on record by him, so also by the complainant himself. though it is obligatory on the court to raise presumptions contemplated under sections 118, 138 and 139 in every case, where the factual basis for raising of the presumption has been established, what is needed for the accused is to raise a probable defence or that the consideration does not exist. the presumption could be rebutted either by leading evidence or bringing facts on record in cross-examination of the complainant which could make the case of the complainant improbable that the cheque was issued in discharge of any debt or other liability or through the documents produced and proved through the complainant. 15. if some material is brought on record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitle to acquittal. the accused can prove the non-existence of a consideration by raising a probable defence. if the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus will shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove will disentitle him to the grant of relief on the basis of negotiable instrument. it is true that in case, where the respondent failed to discharge the initial onus of proof by showing the non-existence of consideration, the complainant would invariably be held entitle to the benefit of presumption arising under section 118(a) in his favour. however, the court may not insist upon the accused to disprove existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, require to be seen with doubt. the standard of proof in such cases evidently is preponderance of the probabilities. inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. the onus, contemplated under sections 118 and 139 of the act, upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused.? in the present case, the accused though has not stepped in the box and has not adduced any evidence by way of cross-examination and by way of documentary evidence, which are the notices and so also by pointing out the circumstances, created a doubtful situation regarding the genesis of the transaction and the defence of the accused may be probable. i am of the view that the respondent has rebutted the presumption in favour of the complainant. thus, the complainant has in fact failed to prove the truthfulness of the repayment of the loan of rs.5,00,000/- (rupees five lacs only) and the demand made by him for the repayment of the said rs.5,00,000/- (rupees five lacs only). if at all, such transaction is not proved then under section 138 of the negotiable instruments act, the complainant cannot stand in the course of law. in view of this, i place reliance on the judgment of the bombay high court in the case of anil, s/o. baburao dange v/s. narayansingh, s/o. budsingh rajput reported in cdj 2008 bhc 968, wherein it is held at para thus: œ5. the trial court repelled defence of the accused that the cheque was issued under intoxication or that it was stolen away. the trial court, however, found that the complainant failed to prove genesis of the transaction. for, it was the case of the complainant that he entered into transaction of purchasing a shop and gave the amount to the accused. the complainant/applicant did not produce the written agreement on record. he did not spell out the details of such transaction. the learned trial judge found that version of the applicant could not show the nexus between the transaction of purchasing a shop and the issuance of the cheque. the learned judge of the trial court found that the applicant failed to prove that the cheque was issued with a view to discharge the existing liabilities. these findings of the facts cannot be regarded as perverse, particularly, when adverse inference was drawn against the applicant due to non-production of the best available primary evidence. the applicant was admittedly having the agreement with him, yet, the same was not produced.? 14. thus, in view of this, the finding given by the learned judicial magistrate first class is to be maintained and it is confirmed. appeal rejected. 15. this court is pleased to appreciate the assistance of both the counsel while deciding the appeal. registry is directed to make the payment of rs.5,000/- (rupees five thousand only) to ms. n. pimenta, learned counsel appearing for the respondent under legal aid scheme.
Judgment:Oral Judgment:
1. This appeal is preferred by the original complainant against the judgment and order dated 19/01/2011 passed by the learned Judicial Magistrate First Class at Panaji in Criminal Case No.OA 107/09/C, thereby acquitting the respondent/accused from the offence punishable under Section 138 of the Negotiable Instruments Act of 1881.
2. It is the case of the original complainant that in the month of February, 2008, the respondent/accused approached the complainant for loan of Rs.5,00,000/- (Rupees five lacs only) and therefore on 26/02/2008, the original complainant gave him loan of Rs.5,00,000/- (Rupees five lacs only) on condition that he would repay the said amount within a period of 6 months and if not paid he would pay interest at the rate of 5% on the said amount. At the relevant time, i.e. on 26/02/2008, the original complainant and the respondent/accused entered into an agreement in which the respondent/accused had acknowledged the debt of Rs.5,00,000/- (Rupees five lacs only) and also acknowledged the repayment of the said loan with interest. The respondent/accused issued a postdated cheque dated 26/08/2008, bearing no.583394 of Rs.5,00,000/- (Rupees five lacs only) drawn on State Bank of India, Canacona Branch, Goa. The said cheque was deposited by the original complainant, but it was dishonoured for want of sufficient funds. The complainant therefore sent legal notice to the respondent/accused and demanded the said amount due to him. However, the said liability was denied by the respondent/accused by replying to the said notice. The original complainant thereafter lodged criminal case in the Court of Judicial Magistrate First Class, Panaji, Goa under Section 138 of the Negotiable Instruments Act. The said case was tried by the learned Magistrate and it was concluded in dismissal of the said complaint and the respondent/accused was acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act. Hence, this appeal.
3. Learned Counsel for the original complainant/appellant has submitted that the learned Judge while appreciating the evidence on the point of facts and also law has committed error and especially on the point of not properly appreciating the presumption under Section 139 of the Negotiable Instruments Act. He submitted that the learned Trial Court did not frame the points of determination as per the requirement of law under Section 138 of the Negotiable Instruments Act. It was necessary for the learned Trial Court to frame point of determination on the point in respect of the proof of ingredients of Section 138 of the Negotiable Instruments Act. However, the learned Judge has framed only one point as to whether the complainant could prove that the accused has issued the cheque towards the discharge of his liability or not. The learned Counsel has submitted that the learned Trial Court did not consider that the complainant has discharged his burden of proving that the loan of Rs.5,00,000/- (Rupees five lacs only) was accepted by the respondent/accused. The Trial Court ought to have accepted the contents in the agreement dated 26/02/2008, which is marked at Exhibit 31. He referred the statutory notice dated 1/12/2008 and also reply given to the notice dated 3/02/2009, marked Exhibit 37. Learned Counsel argued that the learned Trial Judge has erroneously mixed up the other transactions of land dealings which had taken place between the original complainant and the respondent/accused. The respondent/accused had mortgaged a land with the Bank and the original complainant wanted to buy the said mortgaged land. Original complainant had entered into an agreement of sale in respect of the said mortgaged land, where the respondent/accused was a co-owner. The learned Counsel has submitted that the Trial Judge has erred in holding that the original complainant was not having the financial capacity to give loan of Rs.5,00,000/- (Rupees five lacs only) in February, 2008. The learned Trial Court gave wrong finding that in view of Section 269 SS of the Income Tax Act, a person who gives loan is bound to disclose the accounts to the Income Tax Authority. The learned Counsel submitted that the admission given by the original complainant on the point that he did not file returns and did not show amount of Rs.5,00,000/- (Rupees five lacs only) loan is wrongly appreciated by the learned Trial Court. He submitted that the bar of Section 269 SS of the Income Tax Act is not against the giver, but it is against the taker. To substantiate this, he relied on the judgment of JayantilalM. Jain v/s. J.M. Sons and Ors. reported in 1991 (3) BCR 694. He further relied on the judgment of the Single Judge of Bombay High Court at Goa Bench in Mr. Krishna Morajkar V/s. Mr. Joe Ferrao and State of Goa, in Criminal Appeal no.6 of 2012, which was pronounced on 19/07/2013 in which the learned Judge has held that the provisions of Section 269 SS and so also 271 D of the Income Tax Act have absolutely no bearing in respect of ascertaining the fact of legally enforceable liability of the accused. The learned Counsel on the point of shifting of onus and the presumption under Section 139 and 118 of the Negotiable Instruments Act relied on the evidence and the cross-examination of the complainant. The complainant has examined himself to prove his case, and he was cross-examined by the respondent/accused. No evidence was tendered by the accused. It was argued that the complainant has proved his case on the point of giving loan, acceptance of the loan, issuance of the cheque, dishonouring of the cheque and so also on the point of issuing statutory notices. Thus, by tendering the oral as well as documentary evidence he has proved all the ingredients under Section 138 of the Negotiable Instruments Act. He submitted that the respondent/accused in the cross-examination has put some suggestions to the appellant. The suggestions were given in respect of the other transaction which have admittedly taken place between the respondent/accused and the complainant on 26/02/2008. The said transaction is not denied by the original complainant. However, if at all the original respondent has adopted the defence that the cheque of Rs.5,00,000/- (Rupees five lacs only) was given by way of security in respect of the other transaction or was stolen, then it is obligatory on the part of the respondent/accused to lead evidence to discharge that burden. Learned Counsel has submitted that once the complainant has proved all the ingredients under Section 138, then it is obligatory on the part of the respondent/accused to dislodge his case either by eliciting admissions in the cross-examination or by adducing an independent evidence which will dislodge the case of the original complainant. Mere suggestions given to the party are valueless to form any concrete and substantial defence. He pointed out that the respondent/accused though has referred and relied on agreement of sale in respect of the mortgaged land, he did not produce the said agreement of sale before the Court. Similarly, reply given to the notice dated 10/04/2008 i.e. Exhibit 38 is also not proved, but only produced when his statement was recorded under Section 313 of Cr.P.C. Mere production of the document cannot take place of the proof. In support of his submission he relied on the unreported judgment of the Delhi High Court in the case of V.S. Yadav V/s. Reena in +CRL. A. No.1136 f 2010, which was pronounced on 21/09/2010. If the reliable evidence is produced by the complainant, then the presumption under Section 139 of the Negotiable Instruments Act stands in favour of the original complainant and, thus, the onus shifts on the accused to show that due to certain facts or transactions the loan was not a legally enforceable liability. He relied on the judgment of the learned three Judges of the Hon'ble Supreme Court in Rangappav/s. Mohan reported in 2010 AIR SCW 2946. The learned Counsel submitted that assuming that both the parties i.e. the complainant and the accused in the case fail to prove their respective case under the Negotiable Instruments Act, then in that event the presumption which is in favour of the complainant shall prevail. In support of his submissions, he relied on the judgment of TarmahomedHaji Abdul Rehman V/s. Tyeb Ebrahim Bharamchari reported in 1949 BLR 51 219. He prayed that the judgment of the learned Magistrate be set aside and respondent be convicted.
4. Per contra, learned Counsel for the respondent has submitted that the order of acquittal passed by the learned Judge is well reasoned and the findings given by the learned Judicial Magistrate First Class are correct. She submitted that the circumstances, if at all considered on the basis of the evidence of the complainant then the question arises as to why the complainant should pay big amount of Rs.5,00,000/- (Rupees five lacs only) to the accused? She read over the relevant portion in the cross-examination of the complainant where complainant has given admission that the accused was known to him through one Virendra Divkar and he did not have earlier acquaintance with him. She further raised another doubt that if at all there was a land dealing between the parties and consideration of Rs.6,00,000/- (Rupees six lacs only) towards the land was paid by the complainant to the respondent and others, who were the co-owners of the said land by satisfying the mortgaged debt of Rs.1,81,000/- (Rupees one lac eighty one thousand only), then why the amount of Rs.5,00,000/- (Rupees five lacs only) was paid to the respondent. If some amount by way of consideration was received by the respondent/accused then he was not in need of money to raise loan of the amount of Rs.5,00,000/- (Rupees five lacs only). Learned Counsel further submitted that the complainant has failed to prove his financial capacity to lend amount of Rs.5,00,000/- (Rupees five lacs only) at the relevant time. She further pointed out that in the cross-examination complainant has admitted that certain amount was contributed by his father, certain amount was contributed by his sister when he gave the amount of Rs.5,00,000/- (Rupees five lacs only) to the complainant. She submitted that if at all the complainant himself was required to borrow or ask for money to give the amount towards the loan, this itself is damaging to the case of the complainant. The learned Counsel has submitted that no documentary evidence like passbook or bank statement is produced to prove the fact of his financial position and how the payment of Rs.5,00,000/- (Rupees five lacs only) was made by the complainant; as the payment was made in cash. It was contended that the accused has denied the agreement dated 26/02/2008 at Exhibit 31 in the cross-examination of the complainant and, therefore, it was not necessary for the accused to step in the witness box and adduce further evidence to discharge his burden of rebutting the presumption which stood in favour of the complainant. Learned Counsel in support of her submissions has relied on the judgment of the Bombay High Court in AnjanaBalkrishna Shewale V/s. Chayya Baban Jagdale and Anr. reported in 2008 ALL MR (Cri.) 2694, wherein it was held in paragraph 3 of the judgment by the learned Judge that no prudent person will borrow such huge amount to pay installment thereon so as to help a friend. On the same point, she also relied on the judgment in the case of NishithM.P. Verlekar V/s. Ashpaque Marfani reported in 2009 ALL MR (Cri.) 1001. In the said case, whether the complainant was in a position to advance the large sum of money was doubted by the Hon'ble Judge and has considered that the defecne adopted by the accused raising question in respect of the financial capacity of the complainant cannot be rejected outright. Learned Counsel on the point of proof or on the point of discharging the burden of the rebuttal in respect of presumption under Section 139 of the Negotiable Instruments Act has relied on the judgment of ShriVinay Parulekar V/s. Shri Pramod Meshram reported in 2008 ALL MR (Cri.) 461.
5. In the present case, the issue mainly revolves round as to whether the complainant has discharged the burden to prove the legally enforceable debt was due from the accused or not. The learned Counsel of both the sides have relied on the various judgments of this Court and of the Hon'ble Supreme Court. The proposition of law in respect of Section 138 and 139 of the Negotiable Instruments Act is now settled by the catena of judgments. Section 138 of the Act was enacted with an object to improve the credibility of transactions by the negotiable instruments and to facilitate the bank transactions in a smooth manner. It is experienced that recourse of criminal trial is preferred to civil trial as it does not require to pay court fees and it is quicker. However, the section is penal with severe consequences and therefore the section warrants a strict construction on the proof of the facts. If at all the ingredients under Section 138 are proved by the complainant then presumption under Section 139 of the Act stands in his favour. Section 139 reads as under:
139. Presumption in favour of holder “ It shall be presumed , unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
The words that œunless contrary as proved? though are used in the section the degree of the proof is not expected to be beyond reasonable doubt or it does not call for strict proof of the facts?. For the purpose of rebuttal of the presumption, the standard of proof of the facts is required by applying the rule of preponderance of probabilities. When it is said a fact is proved it means that it is legally and judicially believed by the Court and presumption is an additional support given to such acceptance. The presumption under Section 139 is a similar provision like Section 118 of the Negotiable Instruments Act. On this point, I rely on the ratio laid down in the case of RangappaV/s. Mohan (supra) at paras 12 and 14 which reads as under:
12. The respondent-claimant has also referred to the decision reported as MallavarapuKasivisweswara Rao v. Thadikonda Ramulu Firm and Ors., 2008 (8) SCALE 680, wherein it was observed:
œUnder Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. ...?
14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.?
6. On the background of this ratio, the evidence tendered by both the parties and the facts of the case are to be assessed. The learned Magistrate on the point of financial capacity of the complainant and on the point of legally enforceable liability has held that the complainant did not give account to the Income Tax Authority in respect of loan amount of Rs.5,00,000/- (Rupees five laacs only) and, therefore, the learned Judge has invoked the provision of Section 269 SS of the Income Tax Act and held that the said amount was unaccounted and, therefore, it is not a legally enforceable debt or other liability. Learned Counsel for the appellant/original complainant has taken me to the judgment of the learned Single Judge in Mr. Krishna Morajkar (supra). The submissions of learned Counsel for the complainant that though such amount is not shown in the account or the returns are not filed by the complainant, this provision of Section 269 SS, at the most, can be only against the taker and not the giver are accepted. The learned Single Judge of this High Court in the said case held that the provisions of Section 269 SS of the Income Tax Act have no bearing and that is not to be taken into account while considering legally enforceable liability or debt due from the enforceable liability and also assuming the facts of financial capacity of the applicant. The said view is correct and hence the findings given by the learned Magistrate referring the provision of the Income Tax Act is illegal. However, apart form this finding, the judgment of the learned Trial Court is to be looked into and to be examined on the basis of the evidence of the parties and the settled position of law.
7. In the present case, the complainant has stepped in the box and has given evidence in respect of the issuance of the cheque, presentation of the cheque, dishonouring of the cheque of Rs.5,00,000/- (Rupees five lacs only), so also the service of the statutory notice, reply given thereby refusing to make the payment. Thus, the complainant has initially proved the fact that he was holder of the cheque of Rs.5,00,000/- (Rupees five lacs only) and complied the procedure required under Section 138 of the Negotiable Instruments Act. The crux of the matter which is required to be answered in the present case is whether the cheque of Rs.5,00,000/- (Rupees five lacs only) was in fact given by the accused to the complainant towards the hand-loan of Rs.5,00,000/- (Rupees five lacs only) given by the complainant or not? The respondent/original accused in the cross-examination has brought the facts in respect of one more transaction between the complainant and the original accused. The complainant has admitted that there was a land dealing between the parties and the complainant has paid Rs.6,00,000/- (Rupees six lacs only) to the accused and the co-owners towards the consideration amount of the said land. Out of the said amount the loan of Rs.1,81,000/- (Rupees one lac eighty one thousand only) was cleared as the said land was mortgaged with the Bank. This is admitted by the respondent/original accused in his reply to the notice, Exhibit 37.
8. The notices exchanged by the parties throw light on the doubtful part of the case of the complainant. Both the parties have admitted a fact that the land dealing has taken place on 26/02/2008 and the parties have entered into an agreement of sale before the notary and the amount of Rs.1,81,000/- (Rupees one lac eighty one thousand only) was deposited by the complainant to clear the mortgaged land. The truthfulness of the evidence of the complainant can be tested on the basis of the notices. The statutory notice was given by the complainant to the accused on 1/12/2008 marked at Exhibit 36. In the said notice, the complainant in paragraph 1 had said that:
œ1. In discharge of legally enforceable debt and liability, following through the agreement dated 26/02/2008, which you have entered into with my client, you had issued to my client, a cheque dated 26/08/2008 bearing no.583394 drawn on the State Bank of India, Canacona branch, Canacona Goa for a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as the part payment of the total amount payable by you to my client.?
(emphasis placed)
9. It is to be noted that in the entire notice the complainant has not mentioned anywhere that he has given the loan of Rs.5,00,000/- (Rupees five lacs only) to the respondent and the said amount of loan is due from him. The entire notice is drafted skillfully that it only refers the agreement dated 26/02/2008. Interestingly, on the same date, as per the case of the complainant two agreements were entered into i.e. one for agreement for sale in respect of the land and the second alleged agreement, Exhibit 31 was entered into between the complainant and the respondent wherein the respondent has acknowledged the loan of Rs.5,00,000/- (Rupees five lacs only) which was paid on the same day by the complainant to the respondent. The case of the complainant is that these two transactions are independent transactions and are not connected with each other and therefore in the notice dated 1/12/2008, exhibit 36 there was no reference of the agreement of sale or any other transaction related to loan which had taken place between the complainant and the respondent. On perusal of the said notice, especially para 1, it is found that in the notice nowhere it is mentioned that the said amount was demanded towards the loan of Rs.5,00,000/- (Rupees five lacs only) given to the respondent. The notice is vague in respect of the contents regarding repayment and interest in the agreement dated 26/02/2008. Surprisingly, in paragraph 1, the complainant has made a reference of the 'part payment' of the total amount payable by the respondent to the complainant. This creates a doubt as to why reference of part payment of the total amount payable was made, if at all it was a notice for repayment of loan of Rs.5,00,000/- (Rupees five lacs only). Moreover, though there is a mention on the agreement, Exhibit 31 of the interest of 5% of the amount, no demand was made of the 'interest'. It is to be noted that the complainant and the respondent are not friends, but only know each other due to land dealing. Thus, it appears that amount of Rs.5,00,000/- (Rupees five lacs only) was a part payment towards any other transaction and there was no demand for loan as the case of the complainant is. Especially, in the absence of specific mention or specific demand that amount of Rs.5,00,000/- (Rupees five lacs only) was paid towards the loan and therefore the demand was made, the doubt created in respect of the words, œpart payment of the total amount payable? gets stronger.
10. This notice was replied by the respondent by reply dated 3/01/2009. In the reply, the respondent has referred one earlier notice dated 10/04/2008 sent by the complainant to the respondent. He has also referred the agreement dated 26/02/2008. However, in paragraph 3 he made it clear that the same transaction was in respect of the loan and also his family members and the respondent had no title to execute any sale deed and, therefore, the complainant was requested to collect the amount of Rs.1,81,000/- (Rupees one lac eighty one thousand only) with interest from the respondent within 5/06/2008 to 10/06/2008. Though in the notice, Exhibit 36, word œagreement? is used and notice, Exhibit 38, words œagreement of sale? are used, it is apparent that notice is replied with reference to the agreement of sale dated 26/02/2008. He has denied that there was legally enforceable debt or liability towards the purported agreement dated 26/02/2008. Moreover, in paragraph 8, respondent has specifically referred to the contents of the notice dated 10/04/2008 sent by the complainant that the amount was paid towards the entire consideration. The contradiction in contents between the two notices is stark. In the notice dated 1/12/2008, Exhibit 36 complainant has stated that amount towards payment in terms of agreement dated 26/02/2008 and the respondent has issued the cheque in favour of the complainant. However, in previous notice dated 10/04/2008, Exhibit 38 pointed out by the learned Counsel for he respondent, in paragraph 2 the complainant while addressing the respondent has mentioned that the complainant, pursuant to the agreement of sale dated 26/02/2008 had paid the entire consideration in respect of the said property payable to him. Thus, there is obvious contradiction in the notices sent by the complainant i.e. Exhibit 36 and Exhibit 38. The learned Counsel for the respondents has correctly pointed out that specific denial though was made by the respondent in the notice reply, Exhibit 37 the said denial or the said contention is not at all mentioned in the complaint filed by the complainant before the learned Magistrate. The complainant has taken a very clever stand that there were two independent transactions between the parties and therefore the complainant did not mention anything in respect of the other transaction. This submission would have been considered if there would not have been ex facie contradictions in the notices given by the complainant himself to the respondent. The complainant has taken a very tricky stand in the notice which was sent on 1/12/2008. The notice was drafted in such a manner that it suppressed the fact of payment of Rs.5,00,000/- (Rupees five lacs only) to the respondent towards a loan amount and the demand was made for the repayment of Rs.5,00,000/- (Rupees five lacs only).
11. The submissions were advanced by the learned Counsel for the complainant on the point of rebuttal of presumption and it was argued that when the agreement dated 26/02/2008 i.e. Exhibit 31 was relied and proved by the complainant then it was obligatory on the part of the accused to step in the witness box and tender evidence to show that the said document was false. The learned Counsel submitted that the complainant has stated that the said agreement was executed by the accused before notary and it was signed by the respondent and also by him. Thus, the complainant has heavily relied on the proof of the said document which is a documentary evidence supporting the case on the point of payment of Rs.5,00,000/- (Rupees five lacs only). The said document is not admitted by the original accused either in the notice or while taking the cross-examination of the witness. Indeed, certain admissions sought by the respondent in the cross-examination have created substantial doubt regarding the transactions as claimed by the complainant. The complainant has admitted in the evidence that he knew accused through one Virendra Divkar. Virendra Divkar introduced accused to him. The purpose of introduction is also brought on record in the cross-examination that the complainant was interested in purchasing the mortgaged property in Canacona and therefore Shri Divkar introduced accused and thereafter he executed the agreement with the accused in respect of the said property. It was argued that when respondent has denied the execution of the said document then it is his burden to prove that document is forged or fake, as he who asserts, has to prove is a rule of evidence. However, the learned Counsel for the complainant has lost a sight of the rule of evidence that the negative burden cannot be cast especially when there is a case of forgery or fake documents. In the case of forgery or a fake document the burden entirely lies on the person who claims that the document is genuine. This positive burden is required to be discharged by the complainant. The admission is sought in the cross-examination that the said agreement at Exhibit 31 was executed in the presence of one Virendra Divkar. The learned Counsel for the respondent has rightly pointed out that it was necessary for the respondent to examine Virendra Divkar or a notary before whom it was executed. If at all the document executed between the two parties is not witnessed by any person, then there was no question of examining the witness. However, when the evidence is available then it is necessary for a party to adduce best and adequate evidence in support of his case. Thus, the document, agreement at Exhibit 31 which is presented as a documentary evidence of the complainant, though it is exhibited cannot be believed to prove the fact of the acknowledgment of the debt of Rs.5,00,000/- (Rupees five lacs only) by the respondent.
12. Accused has not stepped in the box. The learned Counsel for the respondent has submitted that when either of the parties have not proved the fact then if at all there is a presumption then it should reign. The submissions as a proposition of law is correct, however every criminal case is required to be examined, ascertained and decided on the facts of each case and the evidence adduced before the Judge.
13. I place reliance on the ratio laid down in the case of ShriVinay Parulekar (supra), wherein it is held at paras 14 and 15 thus:
œ14. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. The accused can raise a probable defence from the material brought on record by him, so also by the complainant himself. Though it is obligatory on the Court to raise presumptions contemplated under Sections 118, 138 and 139 in every case, where the factual basis for raising of the presumption has been established, what is needed for the accused is to raise a probable defence or that the consideration does not exist. The presumption could be rebutted either by leading evidence or bringing facts on record in cross-examination of the complainant which could make the case of the complainant improbable that the cheque was issued in discharge of any debt or other liability or through the documents produced and proved through the complainant.
15. If some material is brought on record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitle to acquittal. The accused can prove the non-existence of a consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus will shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove will disentitle him to the grant of relief on the basis of negotiable instrument. It is true that in case, where the respondent failed to discharge the initial onus of proof by showing the non-existence of consideration, the complainant would invariably be held entitle to the benefit of presumption arising under Section 118(a) in his favour. However, the Court may not insist upon the accused to disprove existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, require to be seen with doubt. The standard of proof in such cases evidently is preponderance of the probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. The onus, contemplated under Sections 118 and 139 of the Act, upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused.?
In the present case, the accused though has not stepped in the box and has not adduced any evidence by way of cross-examination and by way of documentary evidence, which are the notices and so also by pointing out the circumstances, created a doubtful situation regarding the genesis of the transaction and the defence of the accused may be probable. I am of the view that the respondent has rebutted the presumption in favour of the complainant. Thus, the complainant has in fact failed to prove the truthfulness of the repayment of the loan of Rs.5,00,000/- (Rupees five lacs only) and the demand made by him for the repayment of the said Rs.5,00,000/- (Rupees five lacs only). If at all, such transaction is not proved then under Section 138 of the Negotiable Instruments Act, the complainant cannot stand in the course of law. In view of this, I place reliance on the judgment of the Bombay High Court in the case of Anil, s/o. Baburao Dange V/s. Narayansingh, s/o. Budsingh Rajput reported in CDJ 2008 BHC 968, wherein it is held at para thus:
œ5. The Trial Court repelled defence of the accused that the cheque was issued under intoxication or that it was stolen away. The Trial Court, however, found that the complainant failed to prove genesis of the transaction. For, it was the case of the complainant that he entered into transaction of purchasing a shop and gave the amount to the accused. The complainant/applicant did not produce the written agreement on record. He did not spell out the details of such transaction. The learned Trial Judge found that version of the applicant could not show the nexus between the transaction of purchasing a shop and the issuance of the cheque. The learned Judge of the Trial Court found that the applicant failed to prove that the cheque was issued with a view to discharge the existing liabilities. These findings of the facts cannot be regarded as perverse, particularly, when adverse inference was drawn against the applicant due to non-production of the best available primary evidence. The applicant was admittedly having the agreement with him, yet, the same was not produced.?
14. Thus, in view of this, the finding given by the learned Judicial Magistrate First Class is to be maintained and it is confirmed. Appeal rejected.
15. This Court is pleased to appreciate the assistance of both the Counsel while deciding the appeal. Registry is directed to make the payment of Rs.5,000/- (Rupees five thousand only) to Ms. N. Pimenta, learned Counsel appearing for the respondent under legal aid scheme.