2010 ALL MR (Cri) 1198
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
N.A. BRITTO, J.
Goa State Co-Op. Bank Ltd.Vs.Mrs. Anuja Khobrekar
Criminal Appeal No.39 of 2008
14th August, 2009
Petitioner Counsel: Shri. G. NAGVEKAR
Respondent Counsel: Shri. N. SARDESSAI
Negotiable Instruments Act (1881) Ss.138, 139 - Dishonour of cheque - Complaint - Presumptions available in favour of complainant in terms of relevant provisions of the Act particularly S.139 thereof - Presumptions are rebuttable - Whether a presumption stood rebutted or not must, therefore, be determined keeping in view of the other evidence on record. 2008 ALL MR (Cri) 1164 (S.C.) - Ref. to. (Para 9)
K. Bhaskaran Vs. Sankaran Vaidhyan Balan, 1999 ALL MR (Cri) 1845 (S.C.)=(1999)7 SCC 510 [Para 6]
K. N. Beena Vs. Muniyappan, 2002(1) ALL MR 277 (S.C.)=(2001)8 SCC 458 [Para 6]
Laxmikant D. Naik Karmali Vs. Santosh Naik, 2006(2) GLR 251 [Para 8]
Smt. Taraben Jamnadas Vs. Narendra Kumar Khetsi, 2007 ALL MR (Cri) 3441=2007(6) AIR Bom.R. 417 [Para 8]
Shri. Mukund Zingdo Naik Vs. Shri. Durganand Dinkar Parab, Cri. Appeal No.83/2006, Dt.:-24-2-2009 [Para 8]
Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 ALL MR (Cri) 1164 (S.C.)=(2008)4 SCC 54 [Para 9]
K. Bhaskaran Vs. Sankaran Vaidhyan Balan, 1999(4) ALL MR 452 (S.C.)=(1999)7 SCC 510 [Para 6]
2. This is complainant's appeal, and is directed against Judgment dated 18-1-2008 of the learned Magistrate by which the accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881.
3. The complainant is a Bank. It had advanced a loan of Rs.1,00,000/- to the Respondent/Accused on or about 27-2-2004 payable in thirty six monthly installments, within the period of three years. The case of the complainant was that the accused issued cheque dated 26-4-2006 for a sum of Rs.1,18,731/- drawn on Goa State Co-operative Bank Ltd., Mapusa, towards part payment of the said loan, which cheque when sent by the complainant for collection was returned dishonoured on 26-4-2006 with endorsement that the funds were insufficient. The complainant sent a demand notice dated 18-5-2006. The accused replied to it and in the said reply the accused admitted having taken a loan of Rs.1,00,000/- but stated that the subject cheque was never issued by the accused to the complainant. The accused stated that at the time of taking the said loan the accused had issued in all 36 blank cheques to the complainant for 36 monthly installments which the accused was required to pay. The accused further stated that the complainant had filed five cases in Mapusa Court in respect of five cheques and the same were later withdrawn by the complainant, after the receipt of the cheque amount. The accused also stated that the accused had paid an amount of three monthly installments by way of cash to the complainant.
4. The complainant having filed the complaint, examined its Branch Manager from whom the accused was able to secure several admissions. The said complainant's Manager admitted that he did not know whether the complainant had filed six other cases against the accused in Mapusa Court. He also admitted that the ink of the signature and the rest of the cheque was different but at the same time stated that the accused had brought the cheque duly filled in. He also admitted that the accused had given 36 cheques and 35 cheques were with the Bank but at the same time stated that he could not say what was the amount or the date written on the said 35 cheques. He also stated that he did not know what was the loan installment. He further stated that he did not know whether the accused had given a reply to the legal notice. He further admitted that the loan was for Rs.1,00,000/- and also admitted that the accused had paid an amount of Rs.27,650/-. He also produced a statement of the loan account. The accused did not lead any evidence.
5. The learned trial Court came to the conclusion that complainant's evidence was totally inconsistent. Regarding the statement that 35 cheques were returned to the accused, the learned trial Court found that it was strange that an institution like the complainant would give 35 cheques without anything in writing. The learned trial Court also found that the evidence given by him was conflicting and came to the conclusion that there was every possibility that the cheques issued by the accused in blank at the time of obtaining the loan were mis-utilized by the Bank, and, therefore the presumptions available to the complainant in terms of the relevant provisions of the Act were rebutted by the accused in cross-examination of the complainant itself, and thus, it was not necessary for the accused to step into the witness box for rebutting the said presumptions.
6. The learned Counsel on behalf of the complainant submits that the accused had admitted having taken a loan, and since the signature on the subject cheque was admitted by the accused, and, therefore the necessary presumption would follow in favour of the complainant, and in that regard, learned Counsel has placed reliance on the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another ((1999)7 SCC 510 : [1999 ALL MR (Cri) 1845 (S.C.) : 1999(4) ALL MR 452 (S.C.)]) and also on the case of K. N. Beena Vs. Muniyappan and another ((2001)8 SCC 458 : [2002(1) ALL MR 277 (S.C.)]).
7. Shri. Sardessai, the learned Counsel on behalf of the accused has submitted that in the light of the admission of the complainant that the accused had paid a sum of Rs.27,650/-, the sum of Rs.1,18,731/- was not due to the complainant as on the date of the cheque, and although 36 blank cheques were given by the accused to the complainant at the time of disbursement of the loan, as on 26-4-2006 an amount of Rs.1,18,731/- was not due and payable to the complainant, and, therefore the complainant was not liable to pay the amount due on the said cheque.
8. Learned Counsel has also placed reliance on a Judgment of this Court in the case of Laxmikant D. Naik Karmali Vs. Santosh Naik (2006(2) GLR 251) wherein it was held that if the cheque is for greater amount than the amount due by the accused to the complainant no offence under Section 138 was made out. Learned Counsel has also placed reliance on Smt. Taraben Jamnadas Vs. Narendra Kumar Khetsi and others (2007(6) AIR Bom.R. 417 : [2007 ALL MR (Cri) 3441]) wherein also it was held that since the loan liability was of Rs.15,00,000/- and payment made was Rs.10,14,000/-, a cheque in the sum of Rs.17,47,050/- could not be treated to be a cheque in discharge of the loan liability of Rs.15,00,000/-. Learned Counsel has also placed reliance on the case of Shri. Mukund Zingdo Naik Vs. Shri. Durganand Dinkar Parab and another (unreported decision of this Court dated 24-2-2009 in Criminal Appeal No.83 of 2006) wherein it was stated as follows:-
"This Court in Laxmikant D. Naik Karmali Vs. Santosh Naik (2006(2) Bom.C.R. 830) has held that when a cheque is issued for an amount more than due by the accused, Section 138 of the Act is not attracted."
9. It is now well settled that the presumptions available in favour of the complainant in terms of relevant provisions of the Act particularly Section 139 thereof are presumptions which are rebuttable and whether a presumption stood rebutted or not, must, therefore be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the accused is not imperative. (See Krishna Janardhan Bhat Vs. Dattatraya G. Hegde ((2008)4 SCC 54) : [2008 ALL MR (Cri) 1164 (S.C.)]). In the case at hand, the complainant's witness does not appear to have been very conversant with the facts of the case at all but certainly the accused cannot be deprived of taking the benefit of the admissions made by him on behalf of the complainant. One of the said admissions is that the complainant had received from the accused a sum of Rs.27,650/-. The statement of account produced on behalf of the complainant does not show the said amount of Rs.27,650/- either before 26-4-2006 i.e. the date of the cheque or after it. It can be seen from the said statement that on 10-4-2006 the accused had deposited in cash a sum of Rs.3,425/- leaving a balance of Rs.1,18,731/-. On 29-4-2006 the balance with accrued interest is shown as Rs.1,20,220/-. If the complainant accepted from the accused Rs.27,650/-, it could not be said that on 26-4-2006 the accused was due and payable to the complainant the sum due on the cheque of Rs.1,18,731/-. The facts of the case clearly disclose that one of the blank cheques given by the accused to the complainant was filled in without verifying what was the amount actually due by the accused to the complainant as on the date of the said cheque. In other words, unless the complainant was able to demonstrate with a statement of account that as on the date of the cheque the accused had a liability to the complainant in the sum mentioned on the cheque, the complainant could not have any implied authority to fill an amount which was not due and payable to the complainant.