2009(3) ALL MR 374
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
N.A. BRITTO, J.
Shri. Bernard Gracias S/O. Late Salvador Gracias Vs. Smt. Trinidade D'silva W/O. Martin Falcao
Criminal Appeal No.76 of 2006
27th August, 2008
Petitioner Counsel: Mr. P. S. RAO
Respondent Counsel: Ms. AMIRA RAZAQ
(A) Negotiable Instruments Act (1881) Ss.138, 139 - Dishonour of cheque - Presumption that cheque was signed on date shown on it - Presumption cannot be rebutted by a naked word of accused without anything more. 2001 ALL MR (Cri) 1028 (S.C.) and 1999(2) ALL MR 269 (S.C.) - Ref. to. (Para 18)
(B) Negotiable Instruments Act (1881) S.139 - Presumption under - Rebuttal of - Rebuttal does not have to be conclusively established - However, such evidence must be adduced before Court in support of the defence that Court must either believe the defence to exist or consider its existence to be reasonably probable, standard of reasonability being that of the 'prudent man'. (Paras 19, 20, 23)
Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 ALL MR (Cri) 1164 (S.C.)=2008(4) SCC 54 [Para 9,19]
Rajendraprasad Gangabishen Porwal Vs. Santoshkumar Parasmal Saklecha, 2008 ALL MR (Cri) 1066=2008(4) AIR Bom.R. 322 [Para 9]
Ashok Yeshwant Badave Vs. Surendra Madhavrao Nighojakar, 2001 ALL MR (Cri) 1028 (S.C.)=2001(3) SCC 726 [Para 18]
Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Payrelal, 1999(2) ALL MR 269 (S.C.)=(1999)3 SCC 35 [Para 19]
Hiten P. Dalal Vs. Bratindranath Banerjee, 2001 ALL MR (Cri) 1497 (S.C.)=AIR 2001 SC 3897 [Para 19]
JUDGMENT :- This is complainant's appeal and is directed against judgment dated 6/05/2006 of the learned JMFC, Canacona, by which the accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881.
3. The case of the complainant, in brief, is that the complainant had advanced a sum of Rs.1,85,000/- to the accused, namely, a sum of Rs.1,00,000 by cash and Rs.85,000/- by cheque and when the complainant demanded the said sum from the accused, the accused paid an amount of Rs.10,000/- and gave the subject cheque for the balance amount which was deposited by him with his bankers namely Syndicate Bank at Canacona only to be informed on the same date that the drawer had stopped payment. The complainant therefore addressed a notice dated 21/11/2003 by registered post demanding the said amount of Rs.1,75,000/- with interest at the rate of 18% per annum within 15 days. However, the said notice was returned to the complainant with postal endorsement 'intimated, addressee unclaimed, return to sender'. In support of the complaint, the complainant examined himself and Sudhakar Shanbagh/PW-2 besides producing the documents.
4. On the other hand, the case of the accused, in her statement recorded under Section 313 of the Code of Criminal Procedure, 1973 is that she had not issued the subject cheque to the complainant but she had given a blank cheque to Yakub Khan as security and the said Yakub Khan had given to the accused Rs.1,00,000/- and when she learnt that the said Yakub Khan had brought the money from the complainant, the said Yakub Khan told her to pay the money to the complainant and thereafter she paid the said sum to the complainant in the presence of two witnesses and the complainant gave her a statement showing the receipt of money. The said statement was produced as Exhibit 56.
5. The accused also examined the said Sudakar Shanbagh/DW-1 as her witness and produced some documents. The accused also examined Sayad Sabid/DW-2, a Branch Manager in charge of Citizen Co-operative Bank, Canacona and also examined herself as DW-3.
6. The accused in her evidence stated that she paid a total amount of Rs.1,41,500/- to the complainant on being told by the said Yakub Khan. Incidentally, it may be stated at this very stage that this was not her case either in cross-examination of the complainant or her statement under Section 313 of the Code. She reiterated that at the time of the said payment, there were two witnesses present namely Joaquim Fernandes and Ignatius Fernandes, being her cousins.
7. The learned trial Court observed that the complainant had not referred to the payment by cheque of Rs.85,000/- on earlier occasion, and, therefore the said payment added suspicion to the case of the complainant and further held that the said story was a new story put forwarded by the complainant which was not there in the notice of demand. The learned Magistrate took note of the admission by the complainant that he had written the body of the cheque which was signed by the accused and came to the conclusion that it amounted to material alteration of the cheque which was impermissible and considering the other anamolies in the evidence of the complainant proceeded to acquit the accused as aforesaid. He also concluded that the debt was not legally enforceable debt as it was time barred.
8. Counsel on behalf of the complainant has submitted that the learned trial Court gave a go bye to the presumptions which were available to the complainant in terms of Sections 118 and 139 of the Negotiable Instruments Act, 1881. Learned Counsel further submits that the accused had admitted payment of Rs.1,00,000/- by receipt dated 3/03/2001 which the accused herself had produced and moreover the cheque given by the complainant to the accused in the sum of Rs.85,000/- was also dated 3/03/2001 and therefore there was no question of the debt being time barred as subject cheque was given on 20/11/2003. Learned Counsel further submits that except for the self serving statement prepared by the accused and produced as Exhibit 56, the accused has produced no proof that any amount was at all paid to the complainant and in case it was so paid then the accused ought to have obtained a receipt from the complainant as was done by the complainant when the complainant gave a receipt in the sum of Rs.1,00,000/- to the accused. Learned Counsel further submits that in case two witnesses were present when the said amount was paid by the accused to the complainant then the accused ought to have examined the said two witnesses, even though they were her relations, to support her claim that the repayment was made by the accused. Learned Counsel further submits that the complainant had admitted that the body of the cheque was written by him but there was nothing in the evidence to suggest that the complainant had obtained a blank cheque form the accused and subsequently filled the same and in case such a blank cheque was given by the accused to the complainant, the complainant would have filled it to an amount which was much higher than the amount advanced by the complainant to the accused. Learned Counsel, therefore, submits that the complainant had advanced Rs.1,00,000/- by cash and Rs.85,000/- by cheque and after payment was made of Rs.10,000/- the accused had issued the subject cheque towards the repayment of the balance and therefore there was no other option for the learned Magistrate but to draw the presumption that the subject cheque was given towards the repayment of the advance. He further contends that the said Yakub Khan is also not examined.
9. On the other hand, learned counsel on behalf of the accused, submits that the amount due on the cheque of Rs.85,000/- was not received by the accused. Learned Counsel further points out that in case the accused had paid a sum of Rs.10,000/- as claimed by the accused, the fact remains that the complainant had not issued any receipt for the same. Learned Counsel further submits that the cheque dated 3/03/2001 for Rs.85,000/- was issued by the complainant only with a view to trap the accused since there is no other reason why the accused had issued the said cheque of Rs.85,000/-. Learned Counsel further submits that the accused did not receive the sum due on the said cheque for Rs.85,000/- as the same has not been signed by the accused but on the contrary the endorsement on the reverse of it shows that the sum was actually collected by the son of the complainant as it was a bearer cheque. In this context learned Counsel has referred to page 284 of "Cheques in Law and Practice" by M.S. Parthasarathy, Sixth Edition, wherein it is stated that :
"When an uncrossed cheque payable to bearer is presented across the counter, the bank need not require the presenter's endorsement or signature, but in practice, the presenter is asked to sign on the cheque presumably in the belief that the signature may prove useful later in identifying the person to whom the payment was made, apart from constituting a receipt for the payment."
Learned Counsel has also placed reliance on the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008(4) SCC 54 : [2008 ALL MR (Cri) 1164 (S.C.)]) and Rajendraprasad Gangabishen Porwal Vs. Santoshkumar Parasmal Saklecha & Anr. (2008(4) AIR Bom.R. 322 : [2008 ALL MR (Cri) 1066]).
10. There is no dispute that the complainant is a retired headmaster and the accused who is a Sales Tax Inspector was the complainant's wife's student and was known to the complainant, as stated by him.
11. The complainant in his evidence stated that the accused was owing to the complainant a sum of Rs.1,75,000/- and when he demanded the said amount, the accused issued the subject cheque. He also stated that he presented the same with his banker, the Syndicate bank only to be returned with endorsement that the payment was stopped by the drawer and whereupon he sent a notice to the accused again to be returned unclaimed. In cross-examination he stated that he did not recollect the date on which he lent the money. In this context various questions were put to him and all that he could say was that he had lent the money after he had retired, 5 or 6 years later. He also stated that besides the subject cheque he did not have any other documents to show that he had given money in the sum of Rs.1,75,000/- to the accused. He also stated that without perusing the record he also could not tell the date, month or the year of the subject cheque when the same was given by the accused. He also stated that he did not recollect whether there was any bank transaction showing the parting of the amount in favour of the accused. It was suggested to him that he had lent the money 7 years back (prior to 13/09/2004) and to that also he stated that he did not recollect. Likewise, he also stated that he could not recollect whether the amount lent was 12 years prior to that. This was on 13/09/2004. Nevertheless, the complainant denied the suggestion that the complainant had given Rs.1,00,000/- to the accused. However, when the cross-examination was resumed on 10/11/2004, the complainant stated that he had given Rs.85,000/- to the accused through a cheque drawn from Citizens Bank, Canacona Branch and it was given on 3/03/2001. He also gave a cheque number as 95763 but stated that he did not know through which Bank the said cheque was cleared. He also produced his passbook wherein the said cheque of Rs.85,000/- was debited in his account as having been paid to the accused. A suggestion to the contrary was denied by him. He was asked as to why he had not mentioned in his complaint about the payment by cheque of Rs.85,000/- and he stated that in view of the issuance of the subject cheque by the accused in the sum of Rs.1,75,000/- he did not find it necessary to mention it. He admitted that Yakub Khan was his friend but denied the suggestion that he and Yakub Khan were doing money transaction without licence. When questioned about the non mention of the payment of Rs.10,000/- out of Rs.1,85,000/-, he stated that there was no necessity for him to plead about the same in his complainant. Again, he stated that the accused gave a cheque on the date which was written on it but he could not recollect the date, month and the year on which the accused gave the said cheque. As regards the cash of Rs.1,00,000/- he sated that he had given from his personal possession and further stated that he did not keep the record to that effect when the said sum of Rs.1,00,000/- had come to his possession. It was suggested to him that he had not lent any money to the accused, a suggestion which he denied. It was also suggested to him that his wife was taking interest on the loan advanced by him, a suggestion which he again denied. He produced the pass book at Exhibit 24 which shows that the sum of Rs.85,000/- towards cheque number 95763 was debited in the name of the accused. No suggestion was put to the complainant, that the amount due on the said cheque was received by his son Hemant Gracias or their employee.
12. Sudakar Shanbagh/PW-2 produced the statement of account of the accused at Exhibit 30 and he stated that after the subject cheque was returned there was no cheque transaction in the account of the accused. He also produced the statement of the account of the accused bearing no.1114 at Exhibit 50.
13. As already stated, the accused also examined the same Sudhakar M. Shanbagh as DW-1. In his evidence he stated that the accused had issued letter/Exhibit 5 instructing to stop payment of the subject cheque. He stated that the Bank does not see before issuing a new cheque book whether earlier cheque book is exhausted. He admitted the possibility that the cheque book containing the subject cheque was issued much earlier to the accused. In cross-examination he stated that the cheque book containing the subject cheque started from number 411251 and ended at 411260. He stated that the cheque book was issued in the year 2000, but again stated that it was issued on 20/11/2002.
14. Sayed Sabid/DW-2 was Branch Manager examined by the accused and he stated that the complainant has an account with them, having no.81 and he stated that there is an entry in the account of the complainant in favour of the accused/Trinidade D'Silva and that was in respect of cheque no.95763 for an amount of Rs.85,000/-. He brought the original cheque having the said number for Rs.85,000/- and referring to the said cheque he stated that there was one signature at point 'Y' being that of Hemant Gracias who is the son of the complainant, which he knew to the best of his knowledge. He also stated that the said Hemant Gracias had also an account in their Bank bearing no. 65 and he also produced a copy of the said account of the said Hemant Gracias and he stated that the signature in the account of Hemant Gracias at Exhibit 50 and the signature on the cheque/Exhibit 49 at point 'Y' were the same. He further stated that he did not recollect if the said cheque/Exhibit 49 was written by Hemant Gracias. He stated that one Sunita Dessai was the cashier at the time when the cheque was issued and further stated that he did not know who had withdrawn the money through the said cheque/Exhibit 49 from account no.81 (of the complainant) and added that the persons who signs at the back of the cheque withdraws the amount. He further stated that there was another signature on the said cheque/Exhibit 49 and that was of Sushma Pawar and further stated that the amount was paid to the bearer of the cheque. He also stated that the cash was paid by the cashier and was not personally paid by him. He was re-examined and in re-examination he stated that the said Sushma Pawar is an employee of the said Hemant Gracias.
15. The accused in her evidence stated that she had given the subject cheque to the said Yakub Khan and the cheque was not written by her and she had given the said cheque in blank as security towards Rs.1,00,000/- in the year 2000 and after that she had obtained many cheque books from the said Bank and she had not obtained any money from the complainant. She stated that she had given the letter to the Bank to stop the payment and produce the copy of the said letter at Exhibit 54. She stated that the said Hemant Gracias is the son of the complainant and further stated that the complainant had not given the cheque of Rs.85,000/- to her. This cheque is at Exhibit 49. She further stated that she had not gone to the Bank on which Exhibit 49 was drawn and her name was falsely written on the said cheque. She stated that she paid the total amount to Yakub Khan in the sum of Rs.1,41,500/- and again stated that Yakub Khan told her to make the payment to the complainant and accordingly she paid the amount of Rs.1,41,500/- and she produced a statement at Exhibit 56 further stating that there were two witnesses Joaquim Fernandes and Ignatius Fernandes from Palolem at that time. She further stated that she was also known as Tecla. She also stated that Joaquim and Ignatius were present when she gave Rs.45,000/- and Rs.50,000/- and as the complainant was not returning the cheque inspite of payment, she had made letter to the Bank. As per her the statement/Exhibit 56 was given to her by the complainant and she further stated that she did not owe any money to the complainant. In cross-examination she stated that Yakub Khan is living and resides at a distance of about 10 mts. from her house and her relations with him are cordial. She further stated that it is Yakub Khan who had given in writing having paid Rs.1,00,000/- to her. She identified the handwriting of the said Yakub Khan on the receipt/Exhibit 58. In further cross-examination she admitted that the payment of Rs.1,00,000/- vide receipt/Exhibit 58 was paid to her by Yakub Khan although it was mentioned therein that she had received Rs.1,00,000/- from the complainant and that the said Yakub Khan had told her this fact later on.
16. If the complainant could not recollect the date when the money was paid by him to the accused, his memory was made good by the accused by production of the receipt dated 3/03/2001/Exhibit 58 by which the accused has admitted having received a sum of Rs.1,00,000/- on 3/03/2001. The accused is no ordinary person and is a Sales Tax Inspector. Whatever may be the evidentiary value of the said receipt Exhibit 58, but by it the accused admits that the loan was given to her of Rs.1,00,000/- on 3/03/2001. The pass book/Exhibit 24 further proves that a cheque was issued by the complainant and a sum of Rs.85,000/- was debited to the account of the complainant, in the name of the accused on 3/03/2001. Thus the accused has helped the complainant to prove and the complainant has proved that a sum of Rs.1,85,000/- was paid to the accused on 3/03/2001. The subject cheque is dated 20/11/2003. Therefore, the learned Magistrate was not right in concluding that the debt is time barred.
17. The accused has stated that a blank cheque was given to the complainant in the year 2000. Sudakar Shanbagh, as witness of both the complainant and accused, has admitted that they do not insist that a previous cheque book should be exhausted, before a new one is issued. His last statement recorded on 11/07/2005 is that the cheque book containing the subject cheque was issued on 20/11/2002. Accused therefore fails to prove that the subject cheque was issued in blank in the year 2000. Her entire case revolves round Yakub Khan. If she had given a blank cheque to the said Yakub Khan and said Yakub Khan had brought and given her the receipt/Exhibit 58, it was necessary for her to have examined him to support her case. Moreover, the said Yakub Khan still maintains cordial relations with the accused and has not been examined and therefore adverse inference has got to be drawn against the accused. The accused also failed to prove the letter dated 15/03/2003 addressed to the Bank, was issued on that day.
18. What now remains is the subject cheque dated 20/11/2002 which the complainant has frankly admitted was filled by him. There is nothing on record to suggest that it was filled in by him after the accused had signed it. The inference is that the complainant had filled it and the accused had signed it. It has a presumption that it was signed on the date shown on it, a presumption which cannot be rebutted by a naked word of the accused, without anything more. In this regard reference could also be made to Ashok Yeshwant Badave Vs. Surendra Madhavrao Nighojakar & Anr. (2001(3) SCC 726 : [2001 ALL MR (Cri) 1028 (S.C.)]) wherein the Apex Court has stated that even in a case of post dated cheque time of six months is to be computed from the date on the face of the cheque.
19. In the case of Krishna J. Bhat [2008 ALL MR (Cri) 1164 (S.C.)] (supra) the Apex court has only cautioned that the Court must be on guard to see that merely on the basis of presumption under Section 139 of the Act, injustice is done or mistaken conviction is imposed. The Apex court has referred to Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Payrelal ((1999)3 SCC 35 : [1999(2) ALL MR 269 (S.C.)]) in para 33 and to Hiten P. Dalal Vs. Bratindranath Banerjee (AIR 2001 SC 3897 : [2001 ALL MR (Cri) 1497 (S.C.)]) in para 41, wherein a three Judge Bench of the Apex Court has stated thus :
"22. ...Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when,
'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonable probable, the standard of reasonability being that of the 'prudent man'."
21. If the accused has stated that she did not obtain any money from the complainant, why did she issue the receipt/Exhibit 58 in the name of the complainant ? How did such a receipt issued in the name of the complainant and signed by her still remained with her ? It is obvious that the said receipt has been subsequently fabricated by her to suit her case and now has boomeranged on her.
22. The story of repayment was conspicuously absent in the cross-examination of the complainant and in case the statement/Exhibit 56 was given to the complainant by the accused then it was her duty to have brought that statement to the notice of the complainant in his cross-examination. Only a bare suggestion was put to the complainant that his wife was collecting interest from her and apart from that no other suggestion as regards repayment was put to the complainant. The case of the accused in her 311 statement was that she had brought Rs.1,00,000/- from the complainant, through Yakub Khan, and had paid the same i.e. Rs.1,00,000/- in the presence of Joaquim Fernandes and Ignatius Fernandes. If that be the case, how does she prepare a statement/Exhibit 56, showing a payment of Rs.1,41,500/- ?, and how does she again say Rs.45,000/- and Rs.50,000/- were paid in the presence of her said cousins ? The case of the accused is inconsistent and self contradictory and, therefore, the same cannot be accepted in rebuttal of the presumptions available to the complainant under the said provisions of the Act. In case the accused had paid Rs.45,000/- and Rs.50,000/- at one stretch in the presence of the said two witnesses then it was incumbent upon her, to prove such payment, to examine the said two witnesses and in the absence of their examination, adverse inference has got to be drawn against the accused. Exhibit 56 therefore has got to be considered nothing but an belated attempt on the part of the accused to prove repayment which was not done and in case it was done the accused would have, at the first available opportunity, put such a case to the complainant that he had received the amount shown on the statement. It is therefore obvious that the accused herself admitted the receipt of Rs.1,00,000/- from the complainant but failed to prove any repayment towards the same. As far as the payment of Rs.85,000/- by cheque i.e. of the same date as that of the receipt, the complainant proved the same through the production of the pass book/Exhibit 24 which showed that the accused was paid an amount of Rs.85,000/- vide cheque no.95763 dated 3/03/2001. No doubt Sayed Sabid/DW-2 stated that it was a bearer cheque and on the reverse of it was signed by Hemant Gracias, the son of the complainant and also by one Sushma Pawar. It can be seen from Exhibit 49 that Sushma Pawar has signed below the said Hemant Gracias and from that it could be inferred that it is she in whose hand the bank paid the amount due on the said cheque. On behalf of the accused, no satisfactory explanation has been given, why on the same day, on 3/03/2001, the complainant in addition to cash payment, should have issued a cheque in the name of the accused. The only explanation is that the complainant who was in the habit of lending money wanted to trap the accused. I am not inclined to accept such a submission. The case of the complainant that he had paid Rs.1,00,000/- in cash is admitted by the accused herself and the payment by cheque of Rs.85,000/- has been proved by the complainant by the production of the bank pass book which shows that a sum of Rs.85,000/- was debited in the name of the accused. Once that was shown it could be certainly presumed that it is the accused who had received the said money due on the said cheque. Only because Sayed Sabid/DW-2 is stated that Sushma Pawar was employee of the said Hemant Gracias, it does not mean that she collected the amount of the cheque on behalf of the son of the complainant. The said Pawar might have also collected the same on behalf of the accused and it was for the accused to prove that inspite of the cheque having been issued in her name, she had not received the amount. The onus was clearly on the accused which she had failed to discharge. Therefore, the case of the complainant that he had paid a sum of Rs.1,00,000/- to the accused by cash and Rs.85,000/- by cheque and in return had received Rs.10,000/- in cash and for the balance the subject cheque was issued can easily be accepted as plausible, truthful and convincing. As already stated in case the accused had made any payment to the complainant it was incumbent on the accused to have drawn his attention in cross-examination to such payments. The story of repayment came for the first time in the statement of the accused under Section 313 of the Code and therefore has to be considered as a clear afterthought and as such false. The statement/Exhibit 56 carried no signature of complainant and in the absence of examination of the said Yakub Khan or the said cousins of the accused it has got to be considered as an attempt at fabrication to support a belated claim of repayment. In fact, the said statement has not been signed by the complainant and for that matter even by the accused.
23. This is a case where the accused had not only failed to discharge the burden but also where the complainant had independently proved the debt. Being so, the learned trial Court was not at all justified in acquitting the accused. It is true, as already stated that the complainant, a retired headmaster had shown some forgetfulness but only to be reminded by the accused herself by the production of the receipt by which she had admitted the liability of having received cash payment of Rs.1,00,000/- on 3/03/2001. The case of the complainant has a ring of truth whilst that of the accused is entirely untruthful, to say the least.
24. Consequently, the appeal deserves to succeed. The impugned order is hereby set aside. The accused is hereby convicted under Section 138 of he Negotiable Instruments Act, 1881. As the accused is absent, S.O. Monday i.e. 1/09/2008 for hearing on the point of sentence.