SUNIL THUKRAL Vs. TOLU @ TULO PUNO VELIP

JUDGEMENT

(1.) THIS appeal is preferred by the original complainant against the judgment and order dated 19/1/2011 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. 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 26/2/2008, 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 26/8/2008, 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.

(2.) 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 li 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 con -tents 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 respond/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 269SS 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 269SS 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 (Jayantilal M. Jain Vs. J.M. Sons and ors.)1, reported in : 1991(3) Bom. C.R. 694. He further relied on the judgment of the Single Judge of Bombay High Court at Goa Bench in (Mr. Krishna Morajkar Vs. Mr. Joe Ferrao and State of Goa)2, in Criminal Appeal No. 6 of 2012, reported in 2014(2) Bom. C.R. (Cri.) 738(P.B.) which was pronounced on 19/7/2013 in which the learned Judge has held that the provisions of section 269SS and so also 271D 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 sections 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 un 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 complain. 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 10/4/2008 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 Vs. Reena), in Cri. A. No. 1136 of 2010, which was pronounced on 21/9/2010. 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 (Rangappa vs. Mohan), reported in : 2010(4) Bom. C.R. (S.C.)652: : A.I.R. 2010 S.C.W. 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 (Tarmahomed Haji Abdul Rehman Vs. Tyeb Ebrahim Bharamchari)5, reported in : 1948 B.C.I. (soft) 94: 1949(51) Bom. L.R. 219. He prayed that the judgment of the learned Magistrate be set aside and respondent be convicted.

(3.) 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 lacs 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 (Anjana Balkrishna Shewale Vs. Chayya Baban Jagdale and Anr)6, reported in 2008(2)Bom. C.R. (Cri.) 210: 2008 ALL M.R. (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 (Nishith M.P. Verlekar Vs. Ashpaque Marfani)7, reported in : 2009(1) Bom. C.R. (Cri.) (P.B.)263: : 2009 All. M.R. (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 defence 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 [Shri Vinay Parulekar Vs. Shri Pramod Meshram)8, reported in : 2008(2) Bom. C.R. (Cri.) (P.B.)160: : 2008 All. M.R. (Cri.) 461.