Criminal Appeal No.27 of 2010

11th September, 2012

Petitioner Counsel: Mr. A.F. DINIZ
Respondent Counsel: Mr. G. AGNI

Cases Cited:
Hemant Pavel Gracias Vs. Socorro Santan Fernandes, 2007 ALL MR (Cri) 3425 =2008(1) BCR (Cri.) 117 [Para 5,8]
Chandrakant Laxman Kerkar Vs. Sai Mundra Finance Pvt. Ltd. & another, 2005(2) Bom.C.R. (Cri.) 59 [Para 5,8]
Balagi Agencies Pvt. Ltd. Vs. Vilas Bagi of Bagi Packages, 2008 ALL MR (Cri) 2230 =2009 (1) BCR (Cri.) 365 [Para 5,8]
Nishith M. P. Verlekar Vs. Ashpaque Marfani, 2009 ALL MR (Cri) 1001=2009(3) BCR (Cri.) 274 [Para 5,8]
Rangappa Vs. Sri Mohan, 2010 ALL SCR 1349 =(2010)11 SCC 441 [Para 5,8]
M. S. Narayana menon @ Mani Vs. State of Kerala and another, 2006(5) ALL MR 33 (S.C.) =2006(6) SCC 39 [Para 6,9]
Sudhir Kumar Bhalla Vs. Jagdish Chand etc., 2008 ALL SCR 2201 =(2008)7 SCC 137 [Para 6,9]
M/s. Pioneer Drip Systems Pvt. Ltd. & Another Vs. M/s. Jain Irrigation Systems Ltd., 2010 ALL MR (Cri) 237 =(2010)2 Mh.L.J. 458 [Para 6,9]
Joseph Vilangadan Vs. Phenomenal Health Care Services Ltd & Another, 2011(1) ALL MR 709 [Para 6,9]
Ramkrishna Urban Cooperative Credit Society Ltd. Vs. Rajendra Bhagchand Warma, 2010 ALL MR (Cri) 1098 [Para 6,9]
ICDS Ltd. Vs. Beemna Shabeer, 2002(4) ALL MR 270 (S.C.)=2002 (6) BCR 20 SC [Para 8]
Krishna Janardan Bhat Vs. Dattatray G. Hegde, 2008 ALL MR (Cri) 1164 (S.C.)=(2008)4 SCC 54 [Para 8]

JUDGMENT

JUDGMENT :- Heard learned Counsel for the parties.

2. By this appeal, the appellant takes exception to the judgment and order dated 15/01/2010 passed by the learned Judicial Magistrate, First Class, Ponda in Criminal Case No.101/NIA/2009/C acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). The appellant is the complainant while the respondent is the accused in the above case filed by the appellant for dishonour of the cheque dated 12.11.2008 for an amount of Rs.1,74,430/-.

3. The case of the complainant is that the accused issued the above referred cheque towards part payment of the loan availed by him. The cheque was delivered by the respondent on 12/11/2008 to Mr. Dayanand Chari. The defence of the accused is that a signed blank cheque was given by him at the time of sanctioning the loan agreement along with the other cheques and the said cheque was misused by the complainant to recover the money which is not due and payable to it. Therefore, it was the case of the accused that there was no legally enforceable debt or liability.

4. In order to prove its case, the complainant examined PW1- Subhod Verekar, who was at the relevant time, was the manager of the society. The defence of the accused in the statement under Section 313 of Cr.P.C. was that he had given a blank cheque which was misused by the complainant. The accused did not lead any defence evidence. The learned Magistrate, upon appreciation of the evidence, oral and documentary, led by the complainant, acquitted the accused of the offence punishable under Section 138 of the Act.

5. Mr. Diniz, learned Counsel appearing for the appellant/ complainant submitted that the order of acquittal passed by the learned Magistrate, is patently unsustainable in law inasmuch as the learned Magistrate has not appreciated that there is presumption under Sections 118 and 139 of the Act regarding legally enforceable debt when a cheque is issued. Learned Counsel further submitted that the accused has not disputed that he had entered into an agreement of loan and there was disbursement of loan. Further, the accused had not disputed that he had signed the cheque nor he had given reply to statutory notice issued to him prior to initiation of criminal proceedings. Therefore, an adverse inference has to be drawn against the accused. Learned Counsel further submitted that the accused had not discharged the burden on him to show that he repaid the entire loan by producing repayment receipts. Learned Counsel further submitted that the amount mentioned in the cheque tallies with the extract of the account produced by PW1-Subhod Verekar. Learned Counsel further submitted that no suggestion was put to PW1-Subhod that the extract was not correct or not as per the loan account book and, therefore, merely because the entire loan account statement was not produced, the same cannot be held against the complainant. Learned Counsel further submitted that the extract can be produced under Section 4 of the Bankers Book Evidence Act. No attempt was made by the accused to seek entire account and the witness was not asked to produce the entire account. The witness also was not confronted with the loan account number in the extract to enable to him to explain the alleged inconsistency in the loan account number. Learned Counsel further submitted that the evidence taken by the accused, has not been proved inasmuch as the accused did not step into the box to depose as to when and to whom the alleged blank cheque was given. Non-examination of Dayanand Chari, the manager, is not fatal to the prosecution case inasmuch as the accused himself has suggested to PW1-Subhod that the cheque was not given to Mr. Chari and as such, no adverse inference can be drawn for non-examination of Mr. Chari, who had resigned and left the services of the bank. Learned Counsel further submitted that the defence taken by the accused was an afterthought. Learned Counsel further submitted that it is not necessary for the complainant to mention the particulars of the loan account. According to learned Counsel, the learned Magistrate has failed to give effect to the presumption under Sections 118 and 139 of the Act and has recorded the findings based on conjectures and surmises and, therefore, the order of acquittal deserves to be quashed and set aside. In support of his submissions, Mr. Diniz relied upon the following judgments :

(i) Hemant Pavel Gracias Vs. Socorro Santan Fernandes; 2008(1) BCR (Cri.) 117 : [2007 ALL MR (Cri) 3425].

(ii) Chandrakant Laxman Kerkar Vs. Sai Mundra Finance Pvt. Ltd. & another; 2005(2) Bom.C.R. (Cri.) 59.

(iii) Balagi Agencies Pvt. Ltd. Vs. Vilas Bagi of Bagi Packages; 2009 (1) BCR (Cri.) 365 : [2008 ALL MR (Cri) 2230]

(iv) Nishith M. P. Verlekar Vs. Ashpaque Marfani; 2009(3) BCR (Cri.) 274 : [2009 ALL MR (Cri) 1001].

(v) Rangappa Vs. Sri Mohan; (2010)11 SCC 441 : [2010 ALL SCR 1349].

6. Per contra, Mr. Agni, learned Counsel appearing for the respondent/ accused submitted that the complaint has not disclosed the particulars of the loan account and the complaint is silent as to whether the cheque was issued towards part payment or in full and final settlement of the amount due under the loan agreement. Further, neither in the notice nor in the complaint, the complainant has stated as to the total amount due and payable as per the record. Learned Counsel further submitted that the evidence of PW1-Subhod Verekar does not establish that on 12/11/2008, an amount of Rs.1,74,430/- was due and payable by the accused to the complainant towards the loan obtained by him from the complainant. Learned Counsel further submitted that the evidence of PW1- Subhod does not establish that the cheque was issued by the accused in the year 2008 for settlement of loan liability. Since the accused has challenged his liability to pay the amount mentioned in the cheque to the complainant, it was necessary for the complainant to establish that the said amount was due and payable to the complainant after adjusting the amount repaid. According to learned Counsel, the tenure of the loan obtained by the accused from the complainant came to end in the year 2004 and in the absence of any correspondence between 2004 and 2008 to show that the accused was aware about the liability and loan agreement, the defence taken by the accused that the complainant misused the blank cheque is more probable. According to learned Counsel, non-examination of Mr. Dayanand Chari to whom the cheque was handed over, by the complainant as per the version of PW1-Subhod, is a material defect and adverse inference deserves to be drawn against the complainant. Learned Counsel further submitted that the evidence of PW1 does not establish that as on 12/11/2008 an amount of Rs.1,74,430/- was due and payable by the accused to the complainant towards the loan account. Learned Counsel further submitted that the evidence of PW1-Subhod not only is sufficient to establish the case set up by the complainant but the same probabilises the defence taken by the accused. Learned Counsel further submitted that the loan agreement which was executed by the accused with the complainant bears Loan No.SBAS/08/01. However, the loan account statement (exhibit 25) produced by PW1 bears the Loan No.SBUS/08/02. Therefore, there is material inconsistency between the loan agreement and the loan account statement. In any case, the loan account statement is for the year 2001 to 2008 and does not reflect the manner in which the balance is brought forward. Learned Counsel further submitted that in terms of the Bankers Book Evidence Act, there is no presumption regarding the correctness of the entries recorded therein and once the consideration for the cheque was challenged by the accused, it was necessary for the complainant to prove the same by producing the entire statement of account. This has not been done by the complainant. According to learned Counsel, the blank cheque given as a security would not be covered within the ambit of Section 138 of the Act. Learned Counsel further submitted that the defence taken by the accused that at the time of availing loan, the accused gave a series of blank cheques, appears probable since it has come on record that the other cheques were also presented by the appellant and were dishonoured. Learned Counsel further submitted that mere fact that the accused has not replied to the statutory notice or stepped into witness box, by itself cannot be the factor for reversal of the order of the acquittal inasmuch as the accused is entitled to rebut the presumption by bringing on record the circumstances in cross-examination which probabilise the defence version. Lastly, learned Counsel submitted that rightly the Magistrate has taken into consideration the entire material on record and has recorded the findings which cannot be said to perverse and, therefore, no interference is warranted in the appeal against the acquittal. In support of his submissions, Mr. Agni relied upon the following judgments :

(i) M. S. Narayana menon @ Mani Vs. State of Kerala and another; 2006(6) SCC 39 : [2006(5) ALL MR 33 (S.C.)].

(ii) Sudhir Kumar Bhalla Vs. Jagdish Chand etc.; (2008)7 SCC 137 : [2008 ALL SCR 2201].

(iii) M/s. Pioneer Drip Systems Pvt. Ltd. & Another Vs. M/s. Jain Irrigation Systems Ltd.; (2010)2 Mh.L.J. 458 : [2010 ALL MR (Cri) 237].

(iv) Joseph Vilangadan Vs. Phenomenal Health Care Services Ltd & Another; 2011(1) ALL MR 709.

(v) Ramkrishna Urban Cooperative Credit Society Ltd. Vs. Rajendra Bhagchand Warma; 2010 ALL MR (Cri) 1098.

7. I have carefully considered the rival submissions, perused the record and the judgments relied upon by both sides.

8. Before I deal with the evidence led by the complainant, I deem it appropriate to refer to the judgments relied upon by both sides.

In the case of Hemant Gracias, [2007 ALL MR (Cri) 3425] (supra), the learned Single Judge of this Court, after referring to earlier judgments of this Court and Apex Court, held that it is not necessary for the plaintiff to prove any consideration and presumption under Section 118 continued in all its rigour. Mere fact that the plaintiff failed to prove consideration did not in any way relieve the defendant from his obligation in law to establish contrary for the presumption raised by Section 118 of the Act. It was further held that silence on the part of the accused in not replying to statutory notice is strong circumstance which reflects falsity of the case of the accused.

In the case of Chandrakant Kerkar (supra), learned Single Judge dismissed the revision application against the judgments passed by two Courts below concurrently holding against the accused. Both the Courts had rejected the defence taken by the accused that blank cheque was given as guarantee towards amounts advanced. The same was not accepted. Learned Single Judge had held that once the cheque was issued presumption that amount was advanced and that liability existed under Section 118 and 139 of the N.I.Act has to be drawn.

In the case of Balagi Agencies Pvt. Ltd, [2008 ALL MR (Cri) 2230] (supra), after referring to judgment of the Apex Court in the case of ICDS Ltd. Vs. Beemna Shabeer, 2002 (6) BCR 20 SC : [2002(4) ALL MR 270 (S.C.)], learned Single Judge held that securities are given so that they can be enforced as and when need arises. Learned Single Judge further held that when drawer of cheque delivers a signed cheque, he obviously gives authority to the holder to put a date of its choice. In the factual background, learned Single Judge held that the cheque could not be said to have not been given for the payment of debt or liability only on the ground that it was given as security.

In the case of Nishith Verlekar, [2009 ALL MR (Cri) 1001] (supra), learned Single Judge has rejected the defence of the accused that he had issued blank cheque as a security to the complainant. Learned Single Judge convicted the accused after holding that the accused had failed to prove that he has repaid an amount of Rs.50,000/- which he had received from the complainant. Learned Single Judge held that the accused had not discharged the onus of proving that he had paid the amount, by producing the books of accounts.

In the case of Rangappa, [2010 ALL SCR 1349] (supra), the Apex Court held that Section 139 of N.I. Act is an example of a reverse onus clause which has been included in furtherance with legislative objective of improving the credibility of the negotiable instruments. The Apex Court further held that the presumption imported by Section 139 includes a presumption that there existed the legally enforceable debt or liability, but the presumption is rebuttable and it was open to the accused to raise defence by contesting the existence of legally enforceable debt or liability. However, the initial presumption favours the complainant. The Apex Court held that the observations made in the case of Krishna Janardan Bhat Vs. Dattatray G. Hegde; (2008)4 SCC 54 : [2008 ALL MR (Cri) 1164 (S.C.)] that "the existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act and that it merely raises a presumption in favour of the holder of the cheque that the same has been issued in discharge of debt or any liability", are in conflict with statutory provisions as well as established line of precedents of the Supreme Court.

9. In the case of M. S. Narayana Menon, [2006(5) ALL MR 33 (S.C.)] (supra) relied upon by Mr. Agni, the Apex Court held that in prosecution under Section 138 of the N.I.Act, the initial burden of proof is on the accused to rebut the presumption under Sections 118 and 139 of the Act by raising a probable defence. If he discharges such burden, the onus thereafter shifts on the complainant to prove his case. Whether initial burden has been discharged by the accused is the question of fact and such burden is not heavy. He need not disprove the prosecution case in its entirety and can discharge the burden on the basis of preponderance of probabilities through direct or circumstancial evidence. For that purpose, he can also rely upon the evidence adduced by the complainant. In the said case, the Apex Court drew adverse inference against the complainant on account of non-production of his statutory books of accounts in relation to transaction in question and held that the same was itself sufficient to rebut the presumption under Section 118 of the N.I.Act.

In the case of Sudhir Kumar Bhalla, [2008 ALL SCR 2201] (supra), the Apex Court remanded the matter to learned Single Judge holding that learned Single Judge of the High Court had not appreciated the defence taken by the accused, that the cheques in question were fabricated by making material alteration and further had not considered the arguments advanced on behalf of the accused that provisions of Section 138 of the Act are attracted if the cheques are issued in discharge of liability of debt and not on account of security of cheques.

In the case of M/s. Pioneer Drip Systems Pvt. Ltd., [2010 ALL MR (Cri) 237] (supra), learned Single Judge of this Court held that Section 138 should not be used as an instrument of recovery of business money and Court must guard against the frivolous complaint.

In the case of Joseph Valingadan (supra), learned Single Judge of this Court held that where the cheque is issued as a security for the performance of contract, the complaint under Section 138 of N. I. Act, is not maintainable. Consequently, learned Single Judge quashed the process issued against the accused.

In the case of Ramkrishna Urban Co-operative Credit Society (supra), learned Single Judge of this Court held that the cheque in question was issued as collateral security. The cheque issued was post dated cheque by way of collateral security and dishonour of the said cheque did not constitute the offence under Section 138 of the N. I. Act.

10. In the light of the ratio laid down in the aforesaid judgments, I would analyse the evidence led by the complainant to find out if the offence punishable under Section 138 of the Act is made out against the accused.

The complainant examined only one witness namely PW1-Subhod Verekar, who at the relevant time, was working as manager of the complainant- society. He filed affidavit-in-evidence in which he stated that the accused had borrowed loan from the complainant and the loan account bore no.SBAS/08/01. The accused issued a cheque in favour of the complainant dated 12/11/2008 for Rs.1,74,430/- drawn on Corporation Bank, Mollem, Goa. The said cheque was presented in Goa State Co-operative Bank at Ponda which was returned unpaid with endorsement 'insufficient funds'. A notice was thereafter given on 03/12/2008 to the accused informing about the dishonour and calling upon to make payment within 15 days of the receipt of the notice. The said notice was received by the accused on 08/12/2008. The accused failed to pay the amount due under the cheque. Therefore, a complaint was filed on 29/01/2009. In examination-in-chief, he produced the following documents :

(i) Affidavit-in-evidence - exhibit 19.

(ii) Cheque no.115408 dated 12/11/2008- exhibit 20.

(iii) Two bank memos -exhibit 21.

(iv) Demand notice along with AD Card- exhibit 22 colly.

(v) Agreement of Loan-exhibit 23.

(vi) Resolutions and letter of authority- exhibit 24 colly.

(vii) Loan account statement- exhibit 25.

(viii) Certificate- exhibit 26.

11. After comparing the copies of the documents with the original documents, the original documents were returned to the witness and copies of all the documents were kept on record. In cross-examination, he denied the suggestion that the accused was not residing at the address mentioned in the cause title. He further stated that the complainant had filed arbitration proceedings against the accused. He further stated that he did not know what business the accused was doing. He stated that he was deposing on the basis of the record and he had absolutely no knowledge of transaction. The loan was taken in the year 2002. He corrected himself by saying that it was taken in the year 2001. The tenure of the loan was upto September, 2004. He denied the suggestion that the cheque in question was taken as signed blank cheque at the time of signing of loan agreement. He denied the suggestion that the body of the cheque was filled by the complainant. He stated that he learnt about the facts of the case after going through the record. He could not tell when the accused defaulted in payment of the first instalment. He admitted that the loan account statement exhibit 25 was for the period 01/01/2008 to 01/01/2009. He further stated that he did not have the entire loan account statement with him nor he could tell the amount the accused had deposited with the complainant upto September, 2004 and when the tenure of the loan came to an end. He further stated that it must be Rs.70,000/- He further stated that the complainant did not send any notice to the accused, but the accused was orally asked to issue the cheque and the accused issued the cheque in question on 12/11/2008. He further stated that he was making statement based on the date mentioned on the cheque, but he did not have any document to show that the cheque was given on 12/11/2008. He further stated that the cheque was handed over to Dayanand Chari, but he did not have record to show that the cheque was handed over to Dayanand Chari. He denied the suggestion that the accused had not handed over the cheque to Dayanand Chari on 12/11/2008. He further stated that he was working for complainant for last 12 years at Ponda Branch and the loan was taken at Mollem Branch. He further stated that the complainant was lending money only to the members and in order to be a member of society, a person had to purchase the shares of the society. He further stated that after the loan expired in the year 2004, they never renewed the loan or entered into any documentation with the accused. The accused had also not acknowledged his liability of the loan after the tenure of the loan came to an end in September, 2004. The loan was disbursed to the accused on 06/08/2001 and the loan was transferred in the savings account of the accused on 06/08/2001. He clarified that his statement that the loan was disbursed on 06/08/2001 was based on the basis of the agreement of loan, but he could not produce the savings account statement of the accused or the loan account statement of 06/08/2001. He could not tell what was the liability of the accused as on 06/08/2004 on which date the tenure of the loan was over. Similarly, he could not state as to what was the liability of the accused on 13/12/2008. He further stated that in the demand notice, the liability of the accused towards the complainant, was not mentioned. He further stated that after three defaults, the complainant was supposed to recall the loan. To a pointed suggestion that the accused had paid all loan instalments regularly, he stated that he was not aware nor he could state as to when the accused defaulted in payment of his first loan instalment. He also could not state how many times the accused defaulted in payment of loan instalments. He denied the suggestion that the accused had never defaulted the payment of the loan instalment. He admitted that he was not involved with the present loan transaction. He admitted that he was not present when the accused handed over the cheque. He stated that at the relevant time, Mr.Dayanand Chari was branch manager. He clarified that Mr.Dayanad Chari was not branch manager, but he was the officer and one Asha Parkar was the manager. He denied the suggestion that the accused had paid all the money arsing out of the loan account. He denied the suggestion that he had purposely concealed the loan account statement. Thereafter, the accused was asked as to how the loan account statement exhibit 25 showed that on 30/01/2008 the complainant had debited cheque return charges, although he had stated that the complainant did not have any other cheque. The witness answered that the accused must have handed over another cheque on that date, but he stated that he did not know the cheque number and from which bank and branch it was. To the suggestion that the cheque was from the same series as the disputed cheque, he could not say anything. He admitted that the complainant had filed previous cases for bouncing of cheques against the accused, but he could not give those cheque numbers. He also admitted that the complainant had filed one more case against the accused before Ponda Court, but he could not give the cheque number. He denied the suggestion that he did not reveal the cheque number because it was of the previous serial number. He could not tell as to when the arbitration proceedings were filed against the accused and for what amount, even by approximation. He further stated that the proceedings were still pending, but he could not tell the stage of the proceedings. He stated that the complainant had not taken any document in writing when the accused handed over the present cheque, as contended by the complainant. He could not also state as to whether the cheque was fully written or the body was blank when the accused handed over the cheque. He also could not tell as to how the accused came to know of his liability on 12/11/2008. He further stated that the complainant did not send the loan account statement to the members/ clients. He stated that he was not aware as to whether the cheque was mentioned in the entry register. To the suggestion that the accused was not in Goa on 12/11/2008, he stated that he was not aware. The witness maintained that the address mentioned in the cause title and the demand notice was the correct address. He denied the suggestion that false complaint was filed by misusing the signed blank cheque, which was given by the accused at the time of filing the application for loan. He also denied the suggestion that the accused did not owe an amount of Rs.1,74,430/- on 12/11/2008. He denied the suggestion that he had concealed material facts and documents and he was deposing falsely.

12. Close scrutiny of the evidence of the above witness, discloses that he did not have any personal knowledge as to when the cheque in question was given to the complainant society. His evidence that the cheque was given by the accused to Mr. Dayanand Chari, is obviously hearsay. It is also pertinent to note that the complainant produced the loan account statement exhibit 25 for the period 01/01/2008 to 01/01/2009. The accused had taken the categorical defence that he did not owe an amount of Rs.1,74,430/- to the complainant as on 12/11/2008. The witness in cross-examination, candidly admitted that he did not know how much money the accused had deposited with the complainant upto 2004 when the tenure of the loan came to an end. He added that it must be Rs.70,000/- but the said statement is not borne out from any documentary evidence. The loan agreement exhibit 23 discloses that the tenure of the loan was to come to end by September, 2004. Therefore, it was necessary for the complainant to establish that in terms of the loan agreement, the amount due was not paid in time. Moreover, the witness has candidly admitted that after three defaults, the complainant was supposed to recall the loan. He also candidly admitted that he could not tell as to how many times the accused had defaulted in payment of loan instalments. He also stated that he could not produce the savings bank statement of the accused or the loan account statement of 06/08/2001. One more factor which goes against the complainant is that in the loan account statement exhibit 25 which has been produced by the complainant, it has been mentioned that on 30/01/2008 the complainant had debited cheque return charges. Obviously, therefore, another cheque given by the accused must have been deposited by the complainant in the bank which was dishonoured. However, the witness could not state the cheque number or the bank on which it was drawn nor he could state the cheque number in respect of which the complainant had filed criminal case for bouncing of cheque. He also stated that the complainant had filed one more case against the accused before Ponda Court, but he could not state the cheque number. A pointed suggestion was put to the witness that he was not revealing the cheque number because it is of the previous serial number. This fact assumes importance inasmuch as if in January 2008 the accused had issued a cheque to the complainant which was bounced, it was improbable for the accused to issue another cheque dated 12/11/2008 unless the complainant partly agreed to accept the cheque dated 12/11/2008 in lieu of the earlier cheque which was bounced. That is not the case of the complainant. In my view, on account of non-production of the loan account statement for the period 2001 to 2008, adverse inference has to be drawn against the complainant that in case the same was produced, it would have gone against the complainant. No doubt, under Section 4 of the Bankers Books Evidence Act, it is permissible for the bank to produce the loan account statement, but considering the facts in the present case, it was obligatory for the complainant to produce the loan account statement for the entire period i.e. 2001 to 2008. There is absolutely no reason forthcoming as to why the complainant produced the loan account statement of the accused for the period 01/01/2008 to 01/01/2009 and could not produce the loan account statement for the period 2001 to 2008. Moreover, the witness could not state as to whether the cheque was fully written or body was blank. There is one more aspect which assumes importance in the present case. There is nothing on record to establish as to how the accused came to know that his loan liability as on 12/11/2008 was Rs.1,74,430/-. If the case of the complainant had to be accepted, then, the complainant must have given the cheque on 12/11/2008 to the officer of the bank after the accused was informed that his liability was as on that date was for Rs.1,74,430/- and the accused after agreeing to pay the said amount, must have issued the cheque. In such a case, it was necessary for the complainant to examine witness to whom the cheque was issued by the accused. It is the case of the complainant that the accused had given cheque to Mr. Dayanand Chari on 12/11/2008, although the same is denied by the accused. It was, therefore, necessary for the complainant to examine Mr. Dayanand Chari to establish the fact that the accused had given the cheque to him, as claimed by the complainant. Mere fact that Mr. Dayanand Chari has resigned from the bank by itself would not be sufficient to hold that he need not have been examined by the complainant. The complainant could have very well sought summons to Mr. Dayanand Chari to examine him as witness. However, the complainant chose not to do so. In my considered opinion, adverse inference has to be drawn against the complainant for non-examination of Mr. Dayanand Chari. Moreover, the agreement of loan (exhibit 23) produced by PW1- Subhod bears No.SBAS/08/01. But the loan account statement (exhibit 25) also produced by PW1 bears No.SBUS/08/02. I find no merit in the submission of Mr. Diniz that the accused ought to have sought explanation regarding the inconsistency in the loan account number. In my view, it was for the complainant to give plausible explanation for the said inconsistency and the accused is entitled to rely upon the said inconsistency in support of his defence.

13. Thus, upon close scrutiny of the evidence led by the complainant what emerges is that the accused has been able to discharge the onus cast on him to establish that the cheque in question was not issued in discharge of debt which he owed to the complainant as on 12/11/2008. In my considered view, the findings recorded by learned Magistrate for acquitting the accused, cannot be said to be perverse and the view taken by the Magistrate is a probable view. Even if it is accepted that different view in favour of the complainant is possible, this by itself would not be sufficient to unsettle the order of acquittal passed by learned Magistrate in view of the settled law laid down by the Apex Court in a catena of judgments that in appeal against acquittal, this Court should interfere only if the view taken by the learned Magistrate is patently unsustainable in law and the findings recorded are perverse. I am of the considered opinion that considering the facts and circumstances of the case, the accused has been able to discharge the onus cast on him on the basis of the evidence led by the complainant itself. Therefore, in my considered view, no interference is warranted with the impugned judgment and order.

14. In the result, therefore, the appeal is dismissed. The bail bond executed by the respondent stands discharged.

15. Appeal stands disposed of. The parties to bear their own costs.

Appeal dismissed.