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Dinesh Narayan Shet S/O Narayan Shet Vs. Ms. Geeta Gurudas Chari - Court Judgment

LegalCrystal Citation
CourtMumbai Goa High Court
Decided On
Case NumberCriminal Appeal No.78 of 2010
Judge
AppellantDinesh Narayan Shet S/O Narayan Shet
RespondentMs. Geeta Gurudas Chari
Excerpt:
.....magistrate was not justified in putting the burden on complainant to prove that the accused had issued cheque for discharge of legally enforceable debt. having regard to the presumption available under sections 118 and 139 of the act it was for the accused to rebut the presumption either by leading the evidence or by cross examining the complainant and his witness, by preponderance of probability. 20. in the present case, as stated above, the accused has been able to discharge the burden and therefore, the ultimate view taken by learned magistrate does not suffer from any infirmity. as such, the findings recorded by learned magistrate cannot be said to be perverse warranting interference by this court with the impugned judgment and order in an appeal from acquittal. it is well settled.....
Judgment:

Oral Judgment

Heard Mr. T. Pereira, learned Advocate for the appellant and Mr. V. Rodrigues, learned Advocate for the respondent.

2. By this appeal, the appellant takes exception to the judgment and order dated 26.4.2010 passed by Judicial Magistrate, First Class, Vasco da Gama in Criminal Case no. 62/OA/NIA/2009/B, acquitting the respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short).

3. The appellant is the complainant in the above case. It is the case of the complainant that the accused approached the complainant to provide financial assistance as the accused was in urgent need of some amount. The complainant knew the accused for last six years. The complainant provided advance of Rs.28,800/- (Rupees twenty eight thousand eight hundred only) to the accused which she promised to return within two months. The accused issued post dated cheque dated 2.4.2009 drawn on HDFC, Bank Porvorim. The cheque was dishonoured for insufficient funds. Thereafter, the complainant sent legal notice by registered post A. D. on 17.4.2009 to the accused which was received by her. However, no reply was sent by the accused. Since the accused failed to make payment, the complaint was filed under Section 138 of the Act.

4. On recording verification, process was issued against the accused. The substance of accusation was explained to the accused for which accused pleaded not guilty. The complainant examined two witnesses and closed his case.

5. The statement of the accused under Section 313 of Cr.P.C. was recorded. The defence of the accused was that she did not know the complainant and that she had not taken any money from him nor the complainant visited her house and that she had not given any cheque to the complainant. The accused did not lead any evidence in defence.

6. Learned Magistrate by the impugned Judgment and order acquitted the respondent/accused of the offence punishable under Section 138 of the Act.

7. Learned Magistrate acquitted the accused primarily on the following grounds:-

(i) The complainant had failed to prove that the accused issued post dated cheque for Rs.28,800/- (Rupees twenty eight thousand eight hundred only) in discharge of legally enforceable debt.

(ii) The complainant had not taken any document in writing from the accused to show that he had given financial assistance to the accused.

(iii) The complainant did not examine one Vicky in whose presence the complainant claimed to have advanced the amount to the accused.

8. Mr. Perreira, learned counsel appearing for the appellant/complainant assailed the impugned Judgment and order of acquittal primarily on the following grounds:-

(i) Learned Magistrate wrongly cast the burden on complainant of proving that there was no legally enforceable debt and it was for the accused to discharge the burden of proving that the cheque was not issued in respect of legally enforceable debt.

(ii) It was not necessary for the complainant to obtain any document in writing at the time of advancing the amount to the accused.

(iii) Non examination of Vicky was not fatal to the case of the complainant.

(iv) The defence of the accused that she did not know the complainant or that she had not given the cheque is palpably false.

9. Mr. Pereira, further submitted that the defence taken by the accused that the cheque was not signed by her or that the cheque was misplaced is improbable defence and has not been substantiated by the accused and even in her statement under Section 313 of Cr.P.C., the accused did not state that the cheque was misplaced. According to the learned Counsel, the findings recorded by learned Magistrate in recording order of acquittal, are perverse and therefore, the impugned judgment and order is liable to be set aside and the accused convicted of the offence punishable under Section 138 of the Act.

10. Per contra, Mr. Rodrigues, learned counsel appearing for the respondent/accused submitted that there is absolutely no evidence on record that the accused was friendly with the complainant and, as such, probability of the complainant advancing loan to the accused is highly improbable.

11. Learned Counsel further submitted that in the normal course, the complainant would have taken some document in writing at the time of advancing the money and therefore, the finding of the learned Magistrate that in the absence of such a document the story of the complainant could not be believed, cannot be said to be illegal. Learned counsel further submitted that even the amount which the complainant has claimed to have advanced to the accused is not shown in the income tax returns. This clearly shows that accused has not borrowed the amount from the complainant. According to the accused, she has discharged the burden of proving that the cheque was not issued in discharge of legally enforceable debt. He further submitted that the version of the complainant that he had borrowed the money from some one else in order to advance the same to the accused is highly improbable since the accused was not known to the complainant at the time when the complainant claimed to have advanced the amount to the accused. Learned counsel further submitted that the complainant could not even state as to when the said amount was due to him and therefore, the order of acquittal passed by the learned Magistrate deserves no interference.

12. In order to prove his case the complainant examined himself as PW1 and Mr. Abhit Naik who was working in HDFC, Bank, as PW2.

13. The complainant deposed that he was residing at New Vaddo, Vasco-da-gama and the accused who was hailing from Mulgao, Bicholim approached him to provide for financial assistance as she was urgently in need of some amount. Since he was knowing her for last six years, he advanced amount of Rs. 28,800/- to her which she promised to return within two months. After expiry of two months, he approached the accused and demanded the said amount. Thereupon the accused issued to him post dated cheque dated 2.4.2009 for an amount of Rs.28,800/- which upon presentation in HDFC Bank, Porvorim, was dishonoured with the remark “funds insufficient'. Thereafter, a legal notice dated 17.4.2009 was sent calling upon the accused to effect payment within 15 days. The accused did not reply inspite of the receipt of the notice nor effected payment. Hence, he filed the complaint.

14. In cross examination, he stated that he was Executive of Mahindra Finance Company and his post was of Customer Associate. When he had gone to the house of the accused he came to know about the accused. He was taken by his friend to the house of the accused and name of his friend was Vicky. He accompanied Vicky to the house of the accused as his friend. He denied the suggestion that the accused did not know him and that he never went to her house. He stated that he had given money to the accused in the year 2008 but he did not remember the exact date and month. He had given the money to the accused in Vasco itself. He did not take anything in writing from the accused for giving her financial assistance. He was not a money lender. He was earlier paying income tax but for last two years he was not paying any income tax and he had not shown the said amount in the income tax return. He further stated that he had borrowed the same and given it to the accused. He did not remember when the time to pay the amount had expired. He denied the suggestion that the accused had not given cheque to him. He claimed that the accused gave him the cheque. He denied the suggestion that the accused had never met him prior to filing of the case. He denied the suggestion that the said cheque Exh. C-1 was misplaced by the accused and he found the same and there was name of the accused on the same and he copied other contents and deposited the same for encashment. He denied the suggestion that the signature on the cheque was not that of the accused. He denied the suggestion that memo at Exh. C-9 does not bear the stamp of the Bank. He denied the suggestion that the legal notice sent by him was not received by the accused. He claimed that his friend was along with him when he gave money to the accused. He denied the suggestion that the accused never took money from him. He denied the suggestion that he had lodged false complaint against the accused to extort money.

15. The evidence of PW2 Abhit Naik only discloses that said cheque was presented in the account of the complainant in HDFC, Bank Porvorim and the same was dishonoured for insufficient funds.

16. The case of the accused is that she did not know the complainant and she had not given any cheque to him. It is further the case of the accused that she had not taken any amount from the complainant and the cheque was misplaced and the same was misused by the complainant. Her further defence is that the signature on the cheque was not hers.

17. Perusal of the complaint discloses that the complainant claimed that he was knowing the accused for last six years whereas in his evidence he stated that he was taken by his friend Vicky at the house of the accused. Admittedly, the complainant was residing at New Vaddo, Vasco whereas the accused was residing at Mulgao, Goa. In his evidence, the complainant claimed that he had given money to the accused in Vasco itself. This is contrary to the earlier statement in his cross examination in which he claimed that money was given to the accused at her house. It is not the case of the complainant that at any point of time the accused was residing at Vasco da gama. Moreover, the complainant stated that the amount was paid in the presence of Vicky. However, Vicky has not been examined. Moreover, the complaint does not even state the date or month in which money was advanced to the accused. More importantly, the complainant does not claim that the accused was friendly with him but claims that he had borrowed the money for being paid to the accused. This appears to be highly improbable inasmuch as since the accused was not friendly with the complainant, it was highly improbable that the complainant would borrow money from somebody and give it to the accused.

18. It is also pertinent to note that the complainant in his evidence stated that he did not know as to when the time for repayment of the amount expires. No doubt the defence taken by the accused that she had not signed the cheque or that she had misplaced the cheque which was misused by the complainant, has not been proved by preponderance of probability by the accused. It is well settled that the accused in a case under Section 138 of the Act need not step into witness box. He can succeed by establishing by cross examination of the complainant and his witnesses that the cheque was not issued in respect of legally enforceable debt. In the present case upon a close scrutiny of the evidence led by the complainant and his witness, in my opinion, the accused has been able to establish that the cheque was not issued in respect of legally enforceable debt.

19. In view of the above, the accused has been able to discharge the burden cast on her of proving that the cheque was not issued in respect of legally enforceable debt. No doubt learned Magistrate was not justified in putting the burden on complainant to prove that the accused had issued cheque for discharge of legally enforceable debt. Having regard to the presumption available under Sections 118 and 139 of the Act it was for the accused to rebut the presumption either by leading the evidence or by cross examining the complainant and his witness, by preponderance of probability.

20. In the present case, as stated above, the accused has been able to discharge the burden and therefore, the ultimate view taken by learned Magistrate does not suffer from any infirmity. As such, the findings recorded by learned Magistrate cannot be said to be perverse warranting interference by this Court with the impugned judgment and order in an appeal from acquittal. It is well settled that the appellate Court in an appeal against an order of acquittal should interfere only if the findings given by the learned Magistrate are perverse and the same are patently unsustainable in law. In the present case, having regard to the evidence led by the complainant, the findings recorded by learned Magistrate cannot be said to be perverse warranting interference in appeal.

21. In the result, I do not find any merit in the appeal. Consequently, the appeal is dismissed. The bail bond executed by the respondent stands discharged.


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