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2019 (7) TMI 1821
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....n amount of ' 4,00,000/-. The respondent assured to repay the amount within a year. One Dinesh Sudhakar Komarpant introduced the respondent with the complainant for the first time in the month of August, 2010. 3. As the accused was in need of ' 4,00,000/- and had assured to repay the amount within one year, the complainant paid an amount of ' 4,00,000/- on 12.11.2010, which was duly acknowledged by the respondent in the presence of witnesses. The respondent issued a cheque bearing no. 3194 dated 7.1.2012 in the sum of ' 4,00,000/- drawn on the Mapusa Urban Co-operative Bank of Goa Limited, Mapusa Branch. When the complainant deposited the aforesaid cheque in his account at Syndicate Bank at Canacona Branch, under advance verbal intimation to the respondent/accused for the payment of the cheque amount, the said cheque came to be returned as dishonoured on 14.1.2012. There was an endorsement appearing on the Banker's Return Memo issued by the Banker as 'Not Arranged For". The complainant orally informed this fact to the respondent/accused, however the accused did not bother to repay the amount and has given false assurance. 4 . A Legal Notice through Reg....
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....ntended that in the month of March 2012, the complainant forced to accompany him in the Conference Hall of the Secretariate, at Porvorim, Goa, where the MLA of Canacona Mr. Ramesh Tawadakar and his Personal Assistant wrongfully restrained him from 4.30 p.m. to 11.00 p.m. and compelled him to write a note stating that he had received ' 4,00,000/- from the complainant. Due to the pressure and threat put on him and due to fear to his life, he wrote the said note. It is further contended that Mr. Ramesh Tawadakar threatened him that if he attends his duties at Secretariate Porvorim, without paying the amount to the complainant, then he would finish him. The respondent therefore did not attend his duties since April 2012, till date. Therefore, he lodged the complaints dated 18.7.2012 and 3.7.2012. 11 . The Trial Court after recording the evidence of the complainant Pw1 Vikas Bhagat, Pw2 Dinesh Komarpant and defendants witness Ajit Pawaskar and after going through the record, by the impugned Judgment and Order acquitted the respondent. 12 . The Learned Magistrate acquitted the respondent mainly on the following grounds: 1 That the complainant/appellant, has failed to d....
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.... Exhibit 19. He, therefore, strongly urged to quash the impugned Judgment and to convict the respondent. 16. Per contra, Shri. Ryan Menezes, the Learned Counsel for the respondent contends that the respondent was unaware of the relations between the complainant and Dinesh and therefore, the complainant could not have advanced such a huge sum to him. He also stressed on the aspect of unaccounted money of the complainant which is sans Income Tax Returns and, therefore, the presumption in favour of the complainant/appellant has been rebutted. The Learned Counsel took me through Exh. 19 in order to buttress his contention as to how it is not a genuine document to prove the alleged transaction of money between the respondent/accused and the appellant/complainant. The Learned Counsel for the respondent has therefore placed reliance on few Judgments of this Court and the Hon'ble Supreme Court, which shall be referred to hereinafter. The Learned Counsel, has therefore supported the impugned Judgment. 17. At the outset, before analyzing the evidence of the appellant and his witnesses vis-a-vis the evidence adduced on behalf of the respondent, it would be necessary to set down few ....
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....ntiated in the cross-examination that at the time of handing over ' 4,00,000/- to the respondent, a document in the form of Exhibit 19 came to be executed which was on a stamp paper purchased by Pw2 Dinesh in his name and it bears the signature of the respondent as well as Pw2 Dinesh. 21. The testimony of this witness corroborates materially by Pw2 Dinesh who works in the Office of New India Assurance Company. He testified that he introduced the accused with the complainant. The accused was introduced to him by his brother-inlaw in the month of January, 2010. In his cross-examination, he testified that in the month of January 2010, accused/respondent had informed him that he is working as a Peon in the Secretariate. The accused/respondent was in need of financial assistance and therefore he approached this witness in the month of August 2010, at Canacona at the residence of his brother-in-law. Pw2 Dinesh could not lend the amount as he was drawing a salary of ' 10,000/- per month. Pw2 Dinesh, therefore, introduced the accused to the complainant/appellant. On the insistence of Pw2 Dinesh, the complainant had paid ' 4,00,000/-. Pw2 Dinesh took the guarantee of the repa....
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....ay not by itself amount to rebuttal of presumption under Section 139 of the said Act. If in a given case the amount advanced by the complainant to the accused is a large amount is not repayable within few months, the failure to disclose the amount in Income-Tax return or Books of Accounts of the complainant may be sufficient to rebut the presumption under Section 139 of the said Act. 8 . In the present case, the amount was allegedly advanced in September 2004. The amount is a large amount of ' 15 lacs. This is a case where not only that there is a failure to disclose the amount of loan in the Income Tax Return of the applicant till the year 2006 but thee is a categorical admission on the part of the applicant that the amount was an "unaccounted" amount. 9 . Before dealing with the aspect of rebuttal of presumption, it will be necessary to refer to the ingredients of Section 138 of the said Act. It will be necessary to refer to a recent decision of the Apex Court in the case of (Krishna Janardhan Bhat Vs. Dattatraya G. Hegde), MANU/SC/0503/2008 : 2008 (2) Bom. C.R. (Cri.) 505 (S.C.): 2008 DGLS (soft)44: 2008 DGLS (Cri.) soft 929: (2008) 4 S.C.C. 54. The case be....
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....d) 10. Thus, what has been held by the Apex Court is that section 139 of the said Act merely raises a presumption in regard to the second aspect of the matter, namely, that the cheque was drawn in discharge of debt or other liability. The Apex Court specifically held that the existence of legally recoverable debt is not a matter of presumption under section 139 of the said Act. The Apex Court specifically held that section 139 merely raises a presumption in favour of holder of cheque that the same has been issued for discharge of any debt or liability. Thus, even if presumption is not rebutted, Act, in order to attract section 138 of the debt has to be a "legally enforceable debt" as said is clear from the explanation to section 138 which provides that for the purposes of the said section the debt or other liability means a legally enforceable debt or other liability. 11. The Apex Court also reiterated well established legal position that for rebutting the presumption under section 139 of the said Act, it is not necessary in every case for the accused to step into the witness box. The Apex Court held that the standard of proof on the part of the accused and that of prosecutio....
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....ly depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same." (Emphasis added) The Apex Court held that presumption of innocence forms part of human rights and therefore the doctrine of reverse burden introduced by section 139 has to be delicately balanced. 12. Now turning back to the facts of the present case, assuming that the presumption under section 139 of the said Act regarding existence of debt or liability is not rebutted, in order to attract section 138, the debt or liability has to be a "legally recoverable" debt or liability. As held by the Apex Court in the case of Krishna Bhat (supra) there is no presumption under section 139 of the said Act that the debt is a legally recoverable debt. In the case of Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza [MANU/SC/0940/2003 : (2004) 2 Supreme Court Cases 235] the Apex Court reiterated that a debt or liability subject matter of section 138 means a legally enforceable debt or liability." 2 7 . The complainant during cross-examination admits that he had not shown the present transaction of ' 4,00,000/- advanced to the accused ....
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....k ink and in different handwriting. 31. Recitals of Exhibit 19 reads as under: I, Shri. Shivdas Pednekar, s/o. Vithu P. Pednekar, resident of H. No. 89, Ward no. 12, Amulim Wada, Khorlim, Mapusa, Goa. That the above person has taken a loan of Rs. 4 lakhs only (Four lakhs only) towards home repairs from Shri. Vikas Gopi Bhagat of Bhagat Wada, H. No. 151, Bhagat Wada, Canacona, Goa. Shivdas Vithu Pednekar Sd/- Witnesses: 1. Shri. Dinesh Sudhakar Komarpant, Sd/- 2. Shri. Vikas gopi Bhagat, Sd/- 32. A bare look at the document indicates as if it is written by the respondent and thereafter in the next para the respondent refers himself as "the above person" which is something strange. Why the respondent should write about himself as "the above person"? 33. There is one more unusual thing which is noticeable is that the signatures are on the right side corner of the page which are normally, if written in the normal course, would have been below the writings. It appears that perhaps signatures were already obtained on a blank stamp papers and thereafter the matter has been written. 34. Exhibit 19, therefore, does not appear to b....
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.... be legal. 38. Pw2 Dinesh admits that even the complainant did not make any inquiry with the accused about his capacity to repay the amount. If the accused promised to repay the loan amount within a period of one year from 12.11.2010, why there is no mention of the said fact in Exhibit 19? This also creates a shadow of doubt about the nature of transaction between the complainant/appellant and the respondent. 39. The defence of the accused that the complainant, Pw2 Dinesh and others had contacted him for securing a Government job and that he introduced them to one Janardhan Parsekar, Ex-Sarpanch of Bastora, who had some political contacts and that some amount was paid to the said Janardhan Parsekar by the complainant, Dinesh and others appears to be probable in the light of the fact that one Ramesh Tawadkar, who was a MLA of Canacona, Goa, stated to have threatened and pressurized the respondent to repay the amount to the complainant. 40. In the cross-examination of the complainant, it has come on record that the local MLA Ramesh Tawadkar and one Umesh Abhigiri, who was the PA of the said MLA had asked the accused to return the amount to the complainant. The complainant ha....
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....nts dated 18.7.2012 and 3.7.2012 against the complainant and MLA. 44. It is quite interesting to note that Pw2 Dinesh in his cross-examination admits that the details of the cheque were written by him at the request of the accused which no sane man will believe. If the accused had really borrowed ' 4,00,000/- from the complainant, then he would have happily written the cheque in his own handwriting without asking the Pw2 Dinesh to write the same. 45. The only inference which would flow from the evidence of this witness and from the other attending circumstances is that the signature of the respondent must have been obtained by force or under pressure. 4 6 . Pw2 Dinesh admits that he had applied for Government service on many occasions. This fact probabilises the contention of the respondent that he had introduced the complainant, Pw2, Dinesh and others to one Mr. Janardhan Parsekar, who had some political contacts and some amount was paid to him by these persons for securing Government jobs. 4 7 . The Supreme Court in the case of Basalingappa Vs. Mudibasappa, MANU/SC/0502/2019, summarized the principles as regards Sec. 118 (a) and 139 of the Negotiable Instruments A....
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....stricted to the fact that he had produced the data indicating an information which came to be generated automatically through bio-metric machine indicating the presence of the accused in the Office on 12.11.2010 when, according to the complainant an amount of ' 4,00,000/- was lent to the accused at Palolem Guest House and Exhibit 19 came to be executed by him. The role of this witness is restricted only to the aspect of supplying of information asked for under the Right to Information Act. 53. He admits that in addition to bio-metric device, the Office also maintains the Muster Roll. The thumb impression scan is taken when an employee joins in the morning and then it is again obtained at the time of leaving the Office in the evening. Between the said duration an employee has a liberty to leave the Office for official purpose. A Movement Register is kept in which the employee leaving the Office has to make an entry. 54. This bio-metric device as per the testimony of this witness indicates the presence of the respondent in the Office for the whole day on 12.11.2010. No attempt has been made by the complainant to bring-forth the Movement Register in order to show that on 12.....
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....s emerged from the detailed examination of the record, as also detailed examination-in-chief as well as cross-examination, that the complainant runs the business. He also maintains the books of account and he has his own factory in the name and style of 'Ashirwad Enterprise' and manufactures plastic. The said factory is situated at Jambusar. Ordinarily, any prudent business person would prefer to transact by cheque while lending money, but it is quite often noticed that the cash transactions in the business would allow huge sum of money as cash, which sometimes are shown in the books of account as cash on hands or otherwise as amount available on books. Assuming that cheque transaction of lending of amount is absent and income-tax returns also do not reflect such amount, that at the best would hold the assessee or lender liable for action under the Income-tax laws. However, otherwise, if he succeeds in showing lending of such amount, both by oral evidence of himself and his friend, on whom even respondent No. 2 relies upon and from the writing of the respondent No. 2 given separately along with seven cheques signed by him, what possible reasons could weigh with the Court to....
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.... accepts his liability to the tune of Rs. 22.50 lakh. Thus, the burden had shifted upon the respondent No. 2. The presumption which was needed to be drawn by the Court under section 118 of the Negotiable Instruments Act would oblige the Court to presume that the cheque had been issued for consideration and until contrary is proved, such presumption would hold the ground. Except the bare denial, nothing has been found to come on record to dislodge the positive proof that has been adduced by the appellant. 30. The trial Court has committed a serious error by not discharging its obligation of recognizing the evidentiary value and not appreciating the positive evidence which led to the reasonable proof of legally enforceable debt existing on the side of the original complainant." 1 5 . The principles aforesaid are not of much debate. In other words, ordinarily, the Appellate Court will not be upsetting the judgment of acquittal, if the view taken by Trial Court is one of the possible views of matter and unless the Appellate Court arrives at a clear finding that the judgment of the Trial Court is perverse, i.e., not supported by evidence on record or contrary to what i....