ANTHONY PEREIRA Vs. RAGHUNATH P SINARAI

JUDGEMENT

(1.) THIS is Complainant's appeal and is directed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Judgment/Order dated 12-2-2007 of the learned J.M.F.C., Panaji.

(2.) THE case of the Complainant, in brief, was that the Complainant had lent a sum of Rs.1,60,000/-, (Rs.1,00,000/- by cheque dated 19-1-1999 and Rs.60,000/- by cash), and the accused towards repayment of the same had issued to the Complainant a cheque in the sum of Rs.1,60,000/- dated 30-9-2000 which cheque when presented for payment was returned dishonoured as the payment was stopped by the drawer. The Complainant sent demand notice to the accused dated 23-3-2001 calling upon the accused to pay the sum of Rs.1,60,000/- within 15 days which notice was returned as unclaimed. The Complainant therefore filed a complaint on or about 8-7-2001 against the accused under Section 138 of the said Act, and in support of the same examined himself.

(3.) AS already stated the case of the Complainant was that the said loan was given interest free, and that statement is hard to believe in the light of the facts stated by the accused and the other witnesses examined on behalf of the accused and particularly W-2/ Rajan Chandreria who had also stated that he had taken a loan of Rs.70,000/- from the Complainant and paid to the Complainant interest at the rate of 10% per month. The averments of the accused of paras 12 and 13 were admitted by the Complainant in his cross-examination, namely as regards the fact that the accused had handed over to the Complainant two blank but signed papers only. The accused had also categorically stated, in para 18 of his affidavit in evidence that on 20-2-1999, exactly a month after the Complainant had lent him a sum of Rs.1,00,000/- he had paid to the Complainant a sum of Rs.7000/-, as the first monthly interest amount at 7% interest per month by cheque No.17559 drawn on Goa State Co-operative Bank, Panaji, and the Complainant had refused to give him a receipt for the said amount. Except for a vague denial that the said statement along with the statements made in the other paragraphs of the affidavit of evidence of the accused was false, no effort was made by the Complainant to disprove the said statements. The cross-examination of the Complainant as well as the accused has been very cryptic, no doubt, but when the accused had made such a categorical statement giving details of the payment made by him with reference to date, the cheque number and the amount it was expected from the Complainant to have sufficiently rebutted the said statement of the accused. True, as pointed out by learned Counsel on behalf of the Complainant no such plea was taken by the accused in the cross-examination of the Complainant, as regards the said payment of Rs.7000/- by cheque dated 20-2-1999 but nevertheless the said statement in the context of other evidence led by the accused could not be disbelieved, and if the accused had proved by preponderance of probability and I have no hesitation to hold so, that he had paid an amount of Rs.7000/- towards interest or otherwise that would rebut the presumption that the cheque was issued towards a liability of Rs.1,60,000/- owed by the accused to the Complainant. Once, that was done, it was for the Complainant to prove that the Complainant had lent not only Rs.1,00,000/- by cheque but also Rs.60,000/- by cash. The Complainant, failed to prove, the latter payment. Looked from another angle, the subject cheque was for an amount more than due by the accused. In this context, this Court in Laxmikant D. Karmali v. Santosh V. Naik 2006 (2) Bo.C.R.(Cri.) 830) held as follows:-