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TMI Blog2007 (8) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-9-2005 calling upon the accused to pay the amount due on the said cheque with interest at the rate of 18% per year within fifteen days from the receipt of the said notice which the accused received on 12-9-2005 but did not reply or comply with the same. The Complainant therefore filed the complaint on 11-10-2005 and examined himself in support of the same. 4. The case of the accused is that a false case has been filed against him. According to the accused, the accused had given to the Complainant a blank cheque with a promise that the Complainant would advance to the accused a sum of Rs. 1,00,000/- which the Complainant did not advance to the accused till date. The accused examined himself in support of his defence. 5. The learned Magistrate has concluded that the notice was vague or in other words the learned Magistrate has observed that he was convinced that it falls short to appraise the accused the actual debt or liability he was required to pay to the Complainant. Admittedly, the statutory notice dated 9-9-2005 was received by the accused on 12-9-2005 and the accused did not reply to the same. It is not the case of the accused that it was vague or he did not understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to pay to the Complainant. 7. The learned Magistrate has also concluded that the Complainant was not the payee of the cheque. As per the accused as well as the learned Magistrate, the Complainant Hemant Pavel Gracias is not the payee as contemplated by Clause (a) of Section 142 of the Act as the cheque issued was in the name of Pavel Hemant Gracias. The Complainant has admitted in his cross-examination that his correct name is Hemant Pavel Gracias and Pavel is his middle name. The Complainant has stated that the entire cheque was filled in by the accused though the accused has pleaded that he had given a blank cheque. The cheque was deposited in the account of the Complainant held by him in Citizen Co-operative Bank, Canacona. It was not the case of the said Bank that Pavel Hemant Gracias in whose name the cheque stood was a different individual, than Hemant Pavel Gracias who had an account with them. In any event, it must be observed that it is the very case of the accused that a blank cheque was given by the accused to the Complainant and as per the Complainant himself the cheque was written by the accused. There is nothing in the cross-examination of the Complainant e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no requirement in law that the Complainant must specifically allege in the complaint that there was a subsisting liability and that the burden of proving that there was no existing debt or liability was on the accused and this the accused have to discharge at the trial. 9. On the other hand, Mr. Nitin Sardessai, the learned Counsel on behalf of the accused has submitted that the Complainant produced no evidence as regards the advancement of the said loan of Rs. 4,00,000/- to the accused and in support of his submission has placed reliance on the case of Shri Sandesh K. Dessai and Anr. v. Shri Dattaraj Keshav (unreported decision of this Court dated 20-7-2005 in Criminal Revision Application No. 10 of 2005). In that case, this Court observed that there was a clear admission by the Complainant that there was no business transaction between the parties and therefore there was a clear rebuttal of presumption raised under Section 139 of the Act. This case stood on its own facts. 10. In K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. 1999CriLJ4606 , the Apex Court has stated thus: As the signature in the cheque is admitted to be that of the accused, the presumption envisage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the accused. It is again surprising that till date the accused has taken no action against the Complainant who according to him, has deceived him by not only not advancing Rs. 1,00,000/- but by misusing the cheque for Rs. 4,00,000/-. 13. In the case of Gorantla Venkateswara Rao v. Kolla Veera Raghava Rao and Anr. the Andhra Pradesh High Court has held that the failure of the accused in giving reply to the legal notice issued by the Complainant is one of the strong circumstances to draw an inference that the accused borrowed the amount from the Complainant and the cheque was issued towards part payment of the legally enforceable debt. If the Complainant had fabricated and misused the blank cheque issued by the accused, the accused would have immediately protested and threatened the Complainant with legal action and would not wait till the end of the trial without taking any action against the Complainant. Adverse inference is required to be drawn against the accused for not replying to the notice. The contention of the learned Counsel of the accused that many times notices are not at all answered cannot be accepted. Those who don't answer may do so at their own r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, observed the Supreme Court, that provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving to the contrary. The Supreme Court also noted that the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court 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 reasonability being that of the prudent man . 17. Although, the accused in this case has given his own evidence, the case of the accused appears to be far from probable. In case the Complainant had misused the blank cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the Act. 20. Heard learned Counsel on behalf of the Complainant and the Accused. After the accused was convicted on 22-8-2007 the case was adjourned thrice at the request of the parties to enable them to work out a settlement. The learned Counsel have now informed that no settlement is possible. 21. Mr. Vaze, learned Counsel on behalf of the Complainant has left the matter of sentencing to the discretion of the Court. Mr. Sardessai, learned Counsel on behalf of the accused has submitted that the accused has two small minor children and has no other source of income except that the wife of the accused earns a living for the family by selling fish, and, considering the said facts appropriate sentence may be imposed upon the accused. Learned Counsel on behalf of the accused also submits that the Complainant is still at liberty to file a suit to recover the money due to him, and such a suit will not be barred by limitation. 22. As stated in para 3 of the complaint, the Complainant had given a friendly loan to the accused in the sum of Rs. 4,00,000/- and it is towards the discharge of that liability that the subject cheque dated 25-8-2005 was issued to the Complainant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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