N.A. Britto, J.@mdashThis is complainant''s appeal and is directed against the Judgment dated 16.7.2007 of the Learned J.M.F.C, Mapusa, acquitting the accused u/s 138 of the Negotiable Instruments Act, 1881.
2. Briefly stated, the case of the complainant was that the accused was his friend of many years and was contractor and was involved in real estate business as well, and in view of his friendship with the accused, the complainant on 10.10.2003 gave friendly loan to the accused in the sum of Rupees Five Lacs in order to tide over his financial difficulties with a promise to return the amount on or before 30.4.2004 and on the same day the accused executed a promissory note and later on 24.4.2004 the accused visited the complainant and gave a cheque bearing No. 15177 dated 24.4.2004 in the sum of Rupees Five Lacs drawn on Development Credit Bank Ltd., Panaji and as per the instructions of the accused, complainant deposited the said cheque on 30.4.2004 in Mapusa Urban Co-operative Bank, Calangute, only to be returned with endorsement that funds were insufficient, whereupon the complainant addressed a demand notice to the accused dated 11.5.2004 calling upon the accused to pay the amount within fifteen days which the accused received on 13.5.2004 and replied by making baseless and false allegations. According to the complainant, the accused cunningly invented a fairy tale and put up unholy pretenses. The complainant, therefore, filed the complaint and in support thereof examined himself. The accused also examined himself and produced other documents.
3. At the outset it may be stated that in the very reply to the demand notice sent by the complainant dated 28.5.2004, the accused had stated that he had not issued the cheque to the complainant as he did not owe any penny to him. The accused has further stated that he had purchased a Pulsar motorcycle from Tata Finance Ltd. and towards the repayment of the said loan/finance, the accused had handed over to Tata Finance Ltd. four numbers cheque books consisting of forty numbers blank signed cheques of Development Credit Bank Ltd., Panaji and the said Tata Finance Ltd. had retained thirty-five cheques and had returned the remaining five cheques to the accused and out of the said five cheques there was cheque No. 15177 which was kept by the accused in his car bearing registration No. GA-01-S-5010 and that on 22.4.2004 one Teofilo D''Souza alongwith three unknown persons had forcibly taken possession of the said maruti car and the motorcycle belonging to the accused and had not returned the same to him and the accused had initiated proceedings against the said Teofilo D''Souza which are pending adjudication and that after the complainant''s notice the accused had reason to believe that the complainant must be connected with the said Teofilo D''Souza and the said cheque was in his possession.
4. The Learned trial court, after considering the evidence produced by the complainant and the accused came to the conclusion that in the present case the accused had raised the defence at the time of filing the reply to the notice issued by the complainant wherein the accused had denied the issuance of the cheque and had mentioned about the cheques being in the car which were forcibly taken by Teofilo D''Souza alongwith three unknown persons. The Learned trial Court observed, and in my view, rightly that the accused had stepped into the witness box and had deposed about the same in detail and the accused produced the other cheques which were allegedly were in the car which were forcibly taken. Besides, the accused had also given numbers of the cheques and had produced the other cheques in evidence. A perusal of the said cheques and the promissory notes in other matters which were produced on record clearly showed that on the other cheques also the signature of the accused is with different ink than the contents and the cheques are not written by the same persons. Besides, the promissory note which was produced in respect of the other matters also bears thumb impression and the signature which is also seen in the promissory note produced in the present case. Besides, the complaints in other matters produced on record show that the accused had taken hand loan. The Learned trial Court also noted that the cheque bearing No. 015178 is dated 6.4.04 and the date on the subject cheque was 24.4.04. The Learned trial Court, therefore, observed that the person would issue the cheque serially but in the present case the previous cheque bears serial No. 15177 and date 24.4.04 and the next cheque bears date as 6.4.04 and as such the Learned trial court observed that it is nowhere the case of the complainant that the cheque was issued as post dated cheque and being so there was doubt. Besides, the case of the accused was that the cheques were blank which were signed by him and which were in the car. The case of the accused is supported by the documents produced by the accused namely the complaints and the civil suit which had been filed by the accused against Teofilo D''Souza which also disclosed about the cheques being in the car and moreover the accused had also replied to the notice issued by the complainant in his said defence. The Learned trial court also noted that the alleged amount was not reflected in the Income Tax returns as well as in the books of accounts and the complainant had admitted that the said amount was not shown in the Income Tax returns as it was held that the defence of the accused was probable.
5. Be that as it may, the accused had given the numbers of the cheques which were returned by Tata Finance to him and the said cheques numbers are 15160, 15177, 15178, 15179 and 15180 and according to the accused one Teofilo D''Souza had approached him to set up a petrol pump at Bambolim as he was previously working for Indian Oil Company and he had told him that if he did his work he would get Rs. 50,000/- and he had told the said Teofilo D''Souza to make a letter to the Company and after about twenty two months, he met the said Teofilo D''Souza who informed him that he had paid the money of Rupees Twelve Lacs to the said company for the purpose of installing the petrol pump in December, 2003 and January, 2004 and the said Teofilo D''Souza told him to collect the said amount which he refused and thereafter the said Teofilo D''Souza approached him and threatened him that he should get the money back from the company and thereafter the said Teofilo D''Souza came alongwith four or five persons to his house and gave bad words, assaulted him on his hand with hockey stick and at that time he was accompanied by Minguel Rodrigues, Estevan D''Souza and Alex Fernandes (complainant) and they demanded the keys of his maruti car and the motorcycle and he gave the said keys as he was assaulted by the said Teofilo D''Souza and both the said vehicles were taken by them and the said Teofilo D'' Souza threatened him that in case he filed complaint to the police he would show him. He stated that he had lodged a police complaint before the Old Goa Police station but police failed to take any action and thereafter he filed a civil suit against the said Teofilo D''Souza and after orders were passed in the said civil suit, the car and the motorcycle were returned to him.
6. At the time of hearing of this appeal it is admitted on behalf of the parties that the subject matter of this case is cheque No. 15177 which according to the complainant was given to him by the accused on 24.4.2004. It is stated that the said Estevan D''Souza had filed a case in respect of cheque No. 15178 dated 6.4.2004 for Rupees Five Lacs at Panaji in which the accused has been acquitted. Likewise, in respect of cheque No. 15179 dated 12.5.2004 for Rs. 4,50,000/- M/s. Millenium Movers had filed a case at Vasco-da-Gama in which the accused has been acquitted. Similarly, in respect of cheque No. 15180 dated 12.5.2004 for Rs. 4,50,000/-, Minguel Rodrigues had filed a case at Margao in which the accused has been acquitted. Shri Usgaonkar has submitted that after the cheques were taken, after the incident of 22.4.04 different cases were filed at different places only to harass the accused. From the admitted position it can be seen that the accused has been acquitted in three cases in relation to cheques which had consecutive numbers. The accused has been convicted in respect of cheque No. 15750 in Criminal case No. 789/04 filed by said Teofilo D''Souza. This cheque was for Rs. 3,33,750/-. As regards this cheque, it is stated by Shri S. Usgaonkar that the accused had challenged the said conviction first before the Sessions Court at Panaji but the appeal came to be dismissed for default, and thereafter before this Court but the appeal was also dismissed. However, it must be noted that cheque No. 15750 is not one of the cheques which according to the accused was returned by Tata Finance. The acquittals in three cases filed by Estevan D''Souza, Millenium Movers and Minguel Rodrigues have attained finality.
7. Shri Sardessai, Learned Counsel on behalf of the complainant has submitted that there was nothing for the complainant to get surprised of, as stated by him in his reply dated 28.5.2004 because prior to that the accused had received a demand notice from Estevan D''Souza dated 11.5.2004 on 13.5.2004 and this shows the falsity of the case of the accused. Learned Counsel further submits that in case the accused had filed any complaint to the police, then, the accused ought to have produced a copy of the same which was not produced. Learned Counsel further submits that it is quite possible that the car of the accused was taken but the accused had failed to prove that there were any cheques in the said car in as much as there was no reference made to the said cheques in the said reply dated 28.5.2004. Learned Counsel further submits that the falsity of the case of the accused is evident from the statement made by the accused that he had given thirty-six cheques to the said Tata Finance Company and in case the accused had cleared the loan within nine months as stated by him, more than nine cheques ought to have been with the accused and not five to be kept in the car. Learned Counsel further submits that the accused has given contradictory version by stating at one stage that the complainant had forced him to sign the cheque and at another stage that the blank cheques were taken by the complainant and others from his said car. Learned Counsel has further submitted that the accused has failed to prove the defence taken by him.
8. On the other hand, Shri Usgaonkar, has submitted that the complainant had come with a case that the complainant had given a contract of Konkani tiatr to the accused to be staged at Calangute, but has resiled from the said statement when he stated in his evidence that he did not give any contract of tiatr on his own to the accused and thus the very foundation of the case of the complainant was destroyed by him. Learned Counsel further submits that the accused who has been acquitted in three cases having consecutive cheque numbers could not be convicted in this case which also has a consecutive number with those three other cases.
9. Admittedly, the subject cheque was signed by the accused and as such, the complainant had a presumption in his favour that the same was given in discharge of a debt or other than liability. On behalf of the complaint reliance has been placed on the case of Shanaz D''souza v. Sheikh Ameer Saheeb 2006 (2) GL.R. 556 wherein it was observed by this Court that the accused having taken a plea that the cheques were misplaced by him, and having failed to prove the same, the only irresistible inference was that the cheques were given by the accused to the complainant for the discharge of the loan taken by the accused from the complainant. That was a case where no evidence was given on behalf of the accused, unlike the case at hand where the accused has given evidence. Reliance is also placed on Deelip Apte v. Nilesh P. Salgaonkar 2006 (2) G.L.R. 229 wherein it was, inter alia, observed that every person who gives friendly loan in all cases does not show such loan in the Income Tax returns more so if they are payable on demand after a short time.
10. Shri Usgaonkar, on the other hand, has placed reliance on the case of
11. In the case at hand, the accused, by his own evidence and the documents produced by him had succeeded in showing that the so called friendly loan advanced by the complainant was improbable or in any way was doubtful and therefore it was incumbent upon the complainant to have proved the giving of the loan which the complainant had failed to prove. Although the accused did not produce the complaint filed by him before the police regarding the incident of 24.4.04, the giving of complaint has been admitted by the said Teofilo D''Souza in the written statement filed by him in the suit filed by the plaintiff bearing Special Civil Suit No. 47/04/B. If there was no incident as alleged by the accused, the accused would not lodge a police complaint. Moreover, the taking of the vehicles from the accused has also been accepted by the said Teofilo D''Souza but in different tone, by sating that as the complainant had failed to pay the loan, the complainant had come to the house of the said Teofilo D''Souza and handed over to the defendant a post dated cheque bearing No. 015750 dated 30.4.04 for Rs. 3,33,750/- and by way of additional security had deposited with the defendant the two vehicles namely a Maruti 800 car and a Hero Honda motorcycle and that the defendant had agreed to return to the complainant the said vehicles after encashing the said cheques. In fact it appears that the said vehicles were ordered to be returned to the accused by order of the Court. If that part of the story of the accused can be accepted, I do not see any reason why other part of the story that the cheques were in the car which were taken by the said Teofilo D''Souza and others ought not to be accepted. In fact in three cases the accused has been acquitted filed by the said Estevan D''Souza, Millenium Movers and Minguel Rodrigues and the acquittals have attained finality. Although the accused did not file the copies of judgments in the said three cases, the only inference which is probable is that the defence taken by the accused was accepted by the Courts and in case the accused has been acquitted on same set of facts, there could not be a conviction in this case on same set of facts. Moreover, the complainant had stated that the accused had brought the promissory note with the matter typed on it alongwith him but the signature and thumb impression were put at his residence at the request of complainant. But, there is no explanation from the complainant if he wanted the promissory note from the accused who was his friend as to why he did not get it executed either before the Notary or an Advocate or why it was bought prepared only to be signed before him. There is no explanation as to why the complainant did not give a copy of the promissory note to the accused when the accused had asked for it. The complainant stated that the cheque was filled by the accused in his presence but at the same time admitted that the ink of the particulars written on the cheque and the signature differed but again stated that the cheque was signed by the accused in his presence but he did not know who had written the particulars on the cheque. These inconsistencies in the evidence of the complainant make the case of the complainant doubtful and that of the accused more probable. In other words, the accused ought to succeed not because of the probability of his version, but because the version given by him throws doubt on the complainant''s version who then was required to prove the actual debt.
12. Considering the evidence led by both the parties, in my opinion, the accused had proved the non existence of consideration and that was fortified by subsequent acquittal of the accused in respect of three cases which acquittal has attained finality. The view held by the Learned Magistrate from the evidence led by both the parties is a plausible view and needs no interference from this Court. I find that there is no merit in this appeal and consequently the same is hereby dismissed.
