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TMI Blog2010 (2) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... of funds . 3. The parties would be referred to as. per their status in the Trial Court and the facts in Criminal Appeal No. 61 of 2009 would be referred to for convenience sake. 4. The appellant herein is the original complainant, who has filed the said complaints. It is the case of the complainant that the accused Nos. 1 and 2 i.e. the respondent Nos. 1 and 2 herein, were engaged in the business of property development and that one Joao Francisco Ivo Paulo Dias and Lidvina Dias, who were the parents of accused No. 1, have given a Power of Attorney to the accused Nos. 1 and 2 in respect of their property Doncotto bearing Survey Nos. 85/8 and 84/2 of Village Cuncolim, Salcete, Goa. It is the case of the complainant that the accused Nos. 1 and 2 had financial problems in developing their property and hence they approached the complainant to help them by arranging money with a promise to refund the same with interest. It is further the case of the complainant that accused Nos. 1 and 2 are his relations and known to him, and therefore, in order to help them, the complainant collected money from various persons including his own money and granted them a loan of ₹ 12,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilty and claimed to be tried. On behalf of the accused, the accused No. 2 examined herself as AW-1 and produced documents being certified copy of deposition of the complainant in Criminal Case No. 894/OA/NIA/06/A so also deposition of Mangala Dessai in Criminal Case No. 895/OA/NIA/06, deposition of Mahesh Kolhapur in Criminal Case No. 895/OA/NIA/06, deposition of Sachin Khandekar in Criminal Case No. 895/OA/NIA/06 so also deposition of complainant in Criminal Case No. 895/OA/NIA/06, which certified copies were Exhibited as 65 collectively. The copy of the letter issued to the ICICI Bank by accused No. 1 at Exhibit 66, copy of the visiting card of Nikhil Kumar at Exhibit 67 and xerox copy of the Navhind Times dated 3.8.2005 and 19.8.2005 at Exhibit 68 collectively. The Trial Court, i.e. the learned J.M.F.C., Vascoda Gama, on the basis of the evidence that was before him and principally on the ground that the issuance of the cheques and the execution of the Agreement of Payment Ex. 29 as also the receipt by the accused and, taking into consideration the evidence of CW-2, CW-3 and CW-4, came to a conclusion that an amount of ₹ 12.00,000/- was advanced by the complainant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid documents were proof by themselves and, therefore, no evidence contrary to the terms of the said Agreement Exhibit 29, could be led to contradict the said document. The learned Senior Counsel further submitted that it was the duty of the Appellate Court to scrutinize the judgment of the Trial Court by coming in close quarters with it. The Appellate Court could not have set aside the findings of the Trial Court without coming to a conclusion that the findings of the Trial Court were contrary to the evidence on record. The learned Senior Counsel further submitted that one of the grounds on which the accused were acquitted was the non examination of Advocate Rajan Naik on account of which, the lower Appellate Court has drawn an adverse inference. The learned Senior Counsel submitted that, in view of the variance in the case of the accused which is evidenced by the reply of the accused to the demand notice, by the contents of the affidavit in evidence, and thereafter, by the deposition of A W-l in cross, the examination of Advocate Rajan Naik was not at all necessary apart from the fact that the said Rajan Naik could not have been examined for he had put in his Vakalatnama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused that the cheques were handed over to Advocate Rajan Naik. The learned Counsel for the accused submitted that the view taken by the lower Appellate Court cannot be said to be perverse on the basis of the evidence which is on record. 12. I have heard the learned Counsel for the parties and bestowed my anxious considerations to the rival contentions. In my view, it would be relevant to refer to the judgment of the Apex Court reported in MANU/SC/0503/2008 : I (2008) CCR 199 (SC) : II (2008) BC 44 (SC) : I (2008) DLT (Crl.) 449 (SC) : 2008(4) SCC 54, in the matter of Krishna Janardhan Bhat v. Dattatraya G. Hegde on the point of presumption under Section 139 of the Act. Paragraphs 29,30, 31, 32, 33, 34, 35, 36 and 41 of the said report are material and are reproduced herein under: 29. Section 138 of the Act has three ingredients viz., (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of Bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused in 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. 35. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reasonable doubt, the standard of proof so as to prove the defence on the part of an accused is preponderance of probabilities. The inference of preponderance of probabilities can be drawn not only from the material brought on record, but also by reference to the circumstances upon which he relies. The rebuttal by the accused does not have to be conclusively adduced but such evidence has to be adduced by him in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of probability being that of a prudent man. It is on the touchstone of the aforesaid judgment of the Supreme Court that the material on record in the instant case would have to be sifted and it would have to be seen whether the accused has rebutted the presumption under Section 139 of the said Act. The evidence in respect of the complainant having collected ₹ 12,00,000/- from various persons which he allegedly advanced to the accused, would have to be seen. In this respect, evidence of CW-1, CW-2.CW-3 and CW-4 is material. 14. Coming to the evidence of CW-1, the said CW-1 has in his cross-examination stated that the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, it has come on record that the complainant is also member of the Confra but he could not borrow as he had already taken a loan from the said Confra and hence he requested her to take the loan in her name. The said witness after stating that the entry regarding the loan of ₹ 6,00,000/- is taken in the books of account, has stated that she did not have anything in writing to show that she had given an amount of ₹ 6,00,000/- to the complainant or that she has taken any security or written document from the complainant for the said loan of ₹ 6,00,000/-. 16. Now coming to the evidence of CW-3 Sachin, he has stated that he had granted a loan of ₹ 3,00,000/- to the complainant also in the third week of October, 2005. In his cross-examination, it has come on record that out of the amount of ₹ 3,00,000/-, his father gave him cash of ₹ 1,00,000/-. He withdrew ₹ 1,00,000/- from his account and his sister had given him ₹ 1,00,000/- so as to make the total amount of ₹ 3,00,000/-. The said witness has stated that he has also not taken any document from the complainant evidencing the payment of the said loan of ₹ 3,00,000/- to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the presence of the said Rajan Naik, the complainant had handed over the amount to the accused and that the accused had handed over the cheques to him. It has also come in the cross-examination of CW-1 i.e. the complainant, that the transaction in question took place in the office of Advocate Rajan Naik on 24.10.2005. That, besides Advocate Rajan Naik and the complainant, the accused were present with one Nikhil Kumar, one Dharmendra Kalangutkar and Advocate Manoj Shetye. It is also slated by the complainant in his cross-examination that the cheques were handed over to the accused by Advocate Rajan Naik and that the Agreement, Exhibit 29 was read over to the complainant by Advocate Rajan Naik. It is the case of the accused No. 2 in defence, that on the stated day she and her husband i.e. accused No. 1 went to the office of Advocate Rajan Naik i.e. on 24.10.2005, when Advocate Rajan Naik, Advocate Manoj Naik and one more person who was introduced to them by Nikhil Kumar, as his financial friend Peter Mascaren held that, thereafter, Rajan Naik drew the Agreement of Payment dated 24.10.2005 and asked her to issue four cheques in favour of the complainant for the sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 1-... Explanation 2-... Explanation 3-The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. 20. The accused are, therefore, entitled to rely upon oral evidence to prove the existence of the fact mentioned in the said agreement namely the alleged loan which has been advanced to the accused. The Trial Court, therefore, merely on the basis that the accused had admitted the execution of the cheques and the Agreement of payment concluded, that the amount was actually received by the accused and held that the cheques were given in discharge of an existing liability and were therefore given for consideration. 21. Another aspect which has to be borne in mind that though the suggestions in the cross-examination are no evidence at all for the other side and that they cannot be used to fill in the gap in the evidence to rebut the presumption under Sections 118 and 139 of the Act. In view of the fact that by the material on record, the accused has succeeded in rebutting the presumption under Sections 118 and 139 of the Act and, therefore, the suggestion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Paragraphs 20 and 21 of the said report are material and are reproduced herein under: 20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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