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Bombay High Court · body

2010 DIGILAW 224 (BOM)

Peter Mascarenhas v. Monsabre Ashley Oswald Dias

2010-02-11

R.M.SAVANT

body2010
JUDGMENT:- The above Criminal Appeals involves identical facts and raise common questions and are therefore heard together. Criminal Appeal No.61 of 2008 is filed challenging the Judgment and Order dated 04.08.2008 whereas the Criminal Appeal No.62 of 2008 is filed challenging the Judgment and Order dated 25.06.2008. By the said Judgment and Orders, the Appeals filed by the Respondents herein came to be allowed by the Sessions Court and the conviction of the Respondents by the learned I.M.F.C., Vasco da Gama. under Section 138 of the Negotiable Instruments Act, 1881. (Act. for short), came to be set aside. 2. The subject matter of the two complaints are the cheque nos.273342 and 273343 for Rs.3,00,000/- each drawn on ICICI Bank. Margao Branch, which have been dishonoured on account of "stop payment advice/insufficiency 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. I 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 Rs.12,00,000/- on 24.10.2005 and that they executed an Agreement of Payment dated 24.10.2005 in his favour and had issued four cheques bearing nos.273341. 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 Rs.12,00,000/- on 24.10.2005 and that they executed an Agreement of Payment dated 24.10.2005 in his favour and had issued four cheques bearing nos.273341. 273342, 273343 and 273344 dated 24.12.2005, drawn on ICICI Bank, Margao Branch, for an amount of Rs.3,00.000/- each duly signed by them drawn on their account towards the repayment of the said amount received by them as loan. It is the case of the Complainant that all the four cheques dated 24.12.2005 were issued under the signature and drawn on their account by them. The cheque bearing no.273342 was presented by the Complainant through his banker Omara Bank. Vasco branch, for encashment on 04.04.2006. The said cheque was dishonoured on account of payment stopped by drawer/ insufficient funds. Intimation to the said effect was received by the Complainant from the Canara Bank on 12.04.2006. Similar was the case with the cheque which is the subject matter of the companion Appeal. It is the case of the Complainant that he was surprised to learn from the intimation dated 12.04.2006 given by his bank that the said cheques issued by the Accused nos. 1 and 2 under their signatures on their bank account, had bounced due to insufficiency of funds. The Complainant on such dishonour of the cheques, issued demand notices on the Accused nos. 1 and 2 as also their parents Joao Dias and Lidvina Dias and inspire of the said demand notices which were received by them they have replied to the said notices but have not paid the amount due and, therefore, the Complainant was constrained to file the complaints under Section 138 of the said Act. 5. On service being effected on the Accused, they appeared in the said complaint. Substance of the accusation came to be explained to the Accused. The accused pleaded not guilty. The complaint therefore, proceeded to trial. 6. The Complainant examined himself and four other witnesses namely CW-2 Mangala Dessai. CW-3 Sachin Khandekar. CW-4 Mahesh Kolhapur and CW-5 Rohit Chopra and produced various documents i.e. the dishonoured cheques at exhibit 26 the Return advice at exhibit 27, Debit advice at exhibit 28. The accused pleaded not guilty. The complaint therefore, proceeded to trial. 6. The Complainant examined himself and four other witnesses namely CW-2 Mangala Dessai. CW-3 Sachin Khandekar. CW-4 Mahesh Kolhapur and CW-5 Rohit Chopra and produced various documents i.e. the dishonoured cheques at exhibit 26 the Return advice at exhibit 27, Debit advice at exhibit 28. Agreement of Payment at exhibit 29, Demand notice, courier receipts numbering four at exhibit 30 collectively and Reply sent by the Accused to the demand notice at exhibit 31.The statement of the Accused under Section 313. Cr.P.C. came to be recorded and the Accused pleaded not guilty 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/O6/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. I at exhibit 66, copy of the visiting card of Nikhil Kumar at exhibit 67 and xerox copy of the Navhind Times dated 03 08.2005 and 19.08.2005 at exhibit 68 collectively. The Trial Court i.e. the learned J.M.F.C., Vasco da 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 ofCW-2, CW-3 and CW -4. came to a conclusion that an amount of Rs.12.00,000/- was advanced by the Complainant to the Accused and, therefore, the cheques in question were towards the discharge of a debt or liability and that the Complainant has proved the existence of the debt and liability. The Trial Court. therefore, convicted the Accused under Section 138 of the said Act and sentenced them to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.3,25,000/- in each of the complaints in default, to undergo simple imprisonment for a further period of three months. 7. The Trial Court. therefore, convicted the Accused under Section 138 of the said Act and sentenced them to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.3,25,000/- in each of the complaints in default, to undergo simple imprisonment for a further period of three months. 7. Aggrieved by the said Judgment and Orders convicting them, the Accused filed Criminal Appeals being Nos.67/2007 and 11/ 2008 in the District and Sessions Court. South Goa, Margao. The said Criminal Appeals filed by the Accused were allowed by the learned Sessions Judge-2 and learned Add!. Sessions Judge-3. South Goa, Margao. by impugned Judgment and Orders dated 04.08.2008 and 25.06.2008. As a consequence, the conviction of the Accused by the Trial COlll1 was set aside by the lower Appellate Court. The lower Appellate Court came to a conclusion that the Accused have, on the basis of the material on record and relying upon the circumstances, successfully rebutted the presumption under Section 139 of the said Act and have probabilised their defence and since the Complainant thereafter has not discharged the burden which shifted to him to prove the existence of the debt or liability of the Accused. The Accused were entitled to acquittal and the Appellate Court, therefore, has set aside the conviction of the Accused. 8. As indicated above, the Judgment and Orders acquitting the Accused are the subject matter of the above two Appeals. 9. I have heard Shri. S. D. Lotlikar, learned Senior Counsel appearing for the Appellants in both the Appeals and the learned Counsel Shri. Arun Bras De Sa for the Respondents i.e. the original Appellants in both the Appeals. 10. On behalf of the Complainant, it was submitted by Shri. Lotlikar. the learned Senior Counsel, that the lower Appellate Court has erred in setting aside the conviction of the Accused on the ground that the Accused have successfully rebutted the presumption under Section 139 of the said Act. The learned Senior Counsel submitted that in view of the admission of the Accused as regards the issuance of the cheques by them and the execution of the Agreement Ex.29 and the receipt, there was no question of any presumption as the 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 AW-1 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 Wakalatnama for the Complainant in the criminal cases initially but had thereafter withdrawn his appearance. The learned Senior Counsel for the Appellant relied upon the Judgment of the Apex Court reported in (2009)2 S.C.C. 513 : [2009 ALL MR (Cri) 239 (S.C.)] in the matter of Kumar Exports V s. Sharma Carpets, in support of his submission that the accused have not rebutted the presumption under Section 139 as warranted in law. The learned Senior Counsel submitted that considering the evidence on record, the Judgments in both the Appeals of the lower Appellate Court were unsustainable and, therefore interference by this Court in its appellate jurisdiction is warranted. 11. Per contra, it is submitted by Shri. D' Sa, the learned Counsel for the Respondents that the Trial Court had erred in convicting the Accused on a erroneous premise that the presumption under Section 139 of the Act is also as regards the existence of a debt. 11. Per contra, it is submitted by Shri. D' Sa, the learned Counsel for the Respondents that the Trial Court had erred in convicting the Accused on a erroneous premise that the presumption under Section 139 of the Act is also as regards the existence of a debt. The learned Counsel submitted that the presumption under Section 139 of the Act is only to the effect that the cheques have been issued in discharge of a debt or liability, but the existence of a debt or liability has to be initially proved by the Complainant only thereafter the onus shifts to the Accused and if the Accused is able to discharge the burden of rebutting the presumption under Section 139 of the Act by raising a probable defence, that the burden shifts back to the Complainant. The learned Counsel submitted that the Trial Court having proceeded on an erroneous presumption by merely taking into consideration the Agreement and the Receipt without appreciating the evidence which had come on record in its proper perspective, had erroneously convicted the Accused, which conviction, according to the learned Counsel, has been rightly set aside by the Appellate Court. The learned Counsel further submitted that the evidence on record overwhelmingly leads to only one conclusion that the amount of Rs.12,00,000/- was in fact never advanced to the Accused. The learned Counsel submitted that the Appellate Court was right in drawing an adverse inference against the Complainant for the non-examination of Advocate Rajan Naik in view of the fact that it was the case of the Complainant himself that the amount was paid to the Accused in the presence of the said Rajan Naik and also in view of the fact that it was the case of the Accused 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 2008(4) S.C.C. 54 : [2008 ALL MR (Cri) 1164 (S.C.)], in the matter of Krishna Janardhan Bhat Vs. 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 2008(4) S.C.C. 54 : [2008 ALL MR (Cri) 1164 (S.C.)], in the matter of Krishna Janardhan Bhat Vs. 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 section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 31. The courts below as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused in required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts we feel is not correct. 32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. 33.In Bharat Barrel & Drum Mfg. Co. Vs. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. 33.In Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Payrelal interpreting Section 118 (a) of the Act, this Court opined: (SCC pp.50-51. para 12) "12. Upon consideration of various judgments as noted hereinabove the position of law which emerges in that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. The case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence 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 form the materials brought on record by the parties but also by reference to the circumstances upon which he relies. Inference of preponderance of probabilities can be drawn not only form 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 other evidence on record. For the said purpose stepping into the witness box by the appellant is not imperative. In a case of this nature where the chances of false implication cannot be ruled out the background fact and the conduct of the parties together with their legal requirements are required to he taken into consideration. 36. In M. S. Narayana Menon Vs. State of Kerala it was held that once the accused in found to discharge his initial burden. it shifts to the complainant. 41. Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal Vs. Bratindranath Banerjee wherein this Court held; (SCC pp.24-25, paras 22-23) "22. ....... Presumptions are rules of evidence and do not conflict with the presumption of innocence, 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. 23. In other words, 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 the contrary. A fact is said to be proved when, 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' Therefore, 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'." 13. The said Judgment, therefore, lays down a proposition that Section 139 of the Act raises a presumption that the cheque had been issued for discharge of a debt or liability and that the existence of legally recoverable debt is not the matter of presumption under Section 139 of the said Act. The said Judgment further lays down that whereas the prosecution must prove the guilt of the Accused beyond 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 leave to be siffed 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 Rs. 1 2,00,000/- 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-I, the said CW-I has in his cross-examination stated that the statement in his affidavit in evidence that the Accused Nos.1 and 2 are his relations, is not correct. Therefore, the CW -1, has started with this initial discordant note, It is also stated by CW-1 in his cross-examination, that the amount of Rs.12.00,000/-, which he advanced to the Accused was accumulated by him by collecting Rs.6,00,000/- from one Mangala Dessai, Rs.3,00,000/- from one Sachin and Rs.2,00,000/- from Mahesh and Rs.1,00,000/- from his personal savings. It would be pertinent to note that he has also stated that he has not given any sort of written document to the said persons as a security or in acknowledgment of having received the said amount. It would be pertinent to note that he has also stated that he has not given any sort of written document to the said persons as a security or in acknowledgment of having received the said amount. He has further stated that he has to return only the principal amount meaning thereby, that he was not required to pay any other amount to the aforesaid persons. Taking the said statement of the Complainant. it is impossible to believe that such a large amount of money was lent by the persons to the Complainant which was to be returned without interest and without the said persons taking any receipt from the Complainant of having taken the said amount. It would also be pertinent to note that in the Agreement exhibit 29 it has been stated that the said amount has been raised by the Complainant from "friend". However, in his deposition, he has stated the names of the aforesaid four persons who are his friends. Significantly, the said Agreement, wherein the word "friend" finds place, has been drafted by an Advocate and, therefore, it is impossible to believe that when so many persons had allegedly lent the money to the Complainant, the Advocate would use the word "friend" rather than "friends". This, in my view is a circumstance which casts a doubt as regards the lending of money by the said persons to the Complainant. 15. The evidence of the said three persons. CW-2-Mangala, CW-3-Sachin and CW -4-Mahesh would have to be considered. In so far as Mangala/CW-2 is concerned, she has stated that in the third week of October, 2005, the Complainant had approached her for a loan of Rs.6,00,000/- as he wanted to help one of his relations. Upon his request, she gave him the money out of the Confra money (some sort of a kitty) of which she is the President. She has further stated that the Complainant had informed her that this amount was given by him to the Accused. In her cross-examination, 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. In her cross-examination, 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 Rs.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 Rs.6.00.000/- to the Complainant or that she has taken any security or written document from the Complainant for the said loan of Rs.6.00.000/-. 16. Now coming to the evidence of CW -3-Sachin, he has stated that he had granted a loan of Rs.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 Rs.3,00,000/-, his father gave him cash of Rs.1 ,00,000/-. He withdrew Rs.1,00,000/- from his account and his sister had given him Rs.1,00,000/- so as to make the total amount of Rs.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 Rs.3,00,000/- to the Complainant. According to the said witness, he is a close friend of the Complainant and that he knows the Complainant for last three years. Significantly, though he claims to be a close friend of the Complainant, the Complainant does not even know his surname which statement has come in the cross-examination of the Complainant/CW -1. 17. Now coming to the evidence of CW-4-Mahesh, it is also stated by him that he handed over to the Complainant an amount of Rs.2.00.000/-. In his cross-examination, he has admitted that he has not obtained any receipt from the Complainant towards the payment of Rs.2.00,000/-. It is stated by the said witness that the said amount of Rs.2,00.000/- was raised by him by taking an amount of Rs.1,00.000-/ from his savings, Rs.50,000/- was borrowed from his friend Shri. Umesh and remaining amount of Rs.50.000/- was borrowed from his in-laws. The said CW-4 is running a Barber shop. It has not come in his evidence as to how he knows the Complainant. The said CW-4 is running a Barber shop. It has not come in his evidence as to how he knows the Complainant. It is also pertinent to note that though he claims to have borrowed Rs.50.000/- from Umesh, he does not know the surname of the said Umesh, who he claims is his customer. It would be stupendous to accept that a person who is running a Barber shop, advanced an amount of Rs.2,00,000/- to the Complainant without the execution of any document. The evidence of CW-2, CW-3 and CW -4 shows that large sums of money were allegedly given on loan by them to the Complainant without interest and the said amounts were advanced without any document or security being taken from the Complainant. This fact becomes all the more relevant since the said persons were not the relations of the Complainant. In fact, in so far as CW-2 Mangala is concerned, she has not mentioned how she knows the Complainant. The Complainant though he claimed that he knew the said persons, did not know the surname of one of them. Whereas, CW-4-Mahesh did not know the surname of Umesh from whom he had borrowed Rs.50,000/-. The aforesaid evidence, in my view, therefore, creates a serious doubt as regards the accumulation of Rs.12.00,000/- by the Complainant by collecting it from the aforesaid persons for being lent to the Accused. 18. In the light of the said evidence, therefore. it was all the more incumbent on the Complainant to examine Rajan Naik as it was the case of the Complainant 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 Nikhi I Kumar, one Dharmendra Kalangutkar and Advocate Manoj Shetye. It is also stated 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 also stated 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 Mascarenhas, and 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 Rs.12,00,000/-, as Rs.9,00,000/ - being principal and remainder Rs.3,00,000/as interest thereon and that Advocate Rajan Naik asked them for the cheques and to sign the Agreement and told them that the Complainant would bring the money upon which, they handed over the cheques to Rajan Naik, who after receiving the same, instructed them to go with the Complainant to his house to collect the amount. That thereafter, the Complainant took them to his house and. on reaching there, demanded that they should help him recover his money from one Baboi Canconkar to whom his friend Nazareth had advanced money on interest and since they refused to do the same, the Complainant refused to give the money to them and on the next day, she asked Rajan Naik to return the cheques and he assured that he would return but did not return the same and informed that the cheques were handed over to Nikhil Kumar. There is, therefore, evidence on record that the cheques were in fact given to Advocate Rajan Naik, which the Complainant has also stated in the cross-examination and, therefore, it was all the more necessary for the Complainant to have examined Rajan Naik to prove that the amount was paid to the Accused in his office. The examination of Rajan Naik was also necessary in the context of the evidence which has come by way of cross-examination of CW-2, CW-3 and CW-4, as regards the collection of Rs.12,00,000/- by the Complainant from the said three persons. The examination of Rajan Naik was also necessary in the context of the evidence which has come by way of cross-examination of CW-2, CW-3 and CW-4, as regards the collection of Rs.12,00,000/- by the Complainant from the said three persons. The Appellate Court, therefore, was right in recording a finding that the case of the Accused that on the insistence of Advocate Rajan Naik they had gone to the house of the Complainant to collect the amount and that the said amount of Rs.12.00.000/- was not paid to them, appears to be probable. 19. The contentions of the learned Senior Counsel for the Complainant that in vie\v of the Agreement Exhibit 29 no oral evidence could be allowed to be led to contradict the contents, in my view, cannot be accepted. No doubt, that there is an admission of the Accused that the Agreement at Exhibit 29 has been executed by them, however, the same would not prevent the admission of oral evidence in terms of Explanation 3 to Section 91 of the Indian Evidence Act. Explanation 3, inter alia. reads as follows: "2. L Evidence of terms of contracts grants and other dispositions of propertv reduced to form of documents.-... Explanation I :- ..... 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. 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 suggestions made to the Accused. AW-2. in her cross-examination on behalf of the Complainant in the said context, cannot be lost sight of As regards the contention of learned Senior Counsel for the Complainant that there is a variance in the theory propounded by the Accused as initially they had put the onus on Nikhil Kumar and thereafter on Rajan Naik, the theory put up by the Accused therefore cannot be accepted and. hence there is no rebuttal of the presumption by the Accused by leading cogent evidence. In the said context, it would be pertinent to note that the said Nikhil Kumar was also a player in the whole episode as can be seen from the fact that he was an attesting witness to the Agreement of Repayment, exhibit 29. It has also come in evidence that he was also present in Advocate Rajan Naik' s office when the said document was executed and he was the person who has introduced the Complainant to the Accused in Advocate Rajan Naik's office. It was, therefore, not as if he was a third party totally alien to the transaction. Though, initially, the Accused had not stated in their reply to the demand notice, the elaborate facts as to they going to the office of Rajan Naik, etc., that by itself, in my view, cannot be said to make a dent as regards the probabilisation of their defence. In juxtaposition though the Complainant was faced with the aforesaid material which has come through the cross-examination of CW-2. CW-3 and CW-4, the Complainant did not choose to lead any further evidence to discharge the burden of proving the existence of the liability when the burden again shifted to him. In juxtaposition though the Complainant was faced with the aforesaid material which has come through the cross-examination of CW-2. CW-3 and CW-4, the Complainant did not choose to lead any further evidence to discharge the burden of proving the existence of the liability when the burden again shifted to him. Applying the principles that the Complainant has to prove till offence beyond reasonable doubt but the Accused has to only probabilise his defence, in my view, the test has been satisfied by the Accused then the Complainant. The Complainant as can be seen has not led any further cogent evidence to prove the factum of the lending of the money to the Accused and thereby has not discharged the burden which had shifted to him on account of the evidence which has come in cross-examination of the Complainant and his witnesses. 22. Now coming to the Judgment relied upon by the learned Senior Counsel for the Appellant in the matter of Kumar Export" Vs. Sharma Carpets [2009 ALL MR (Cri) 239 (S.C.)] (supra). as regards the manner in which the Accused can rebut the presumption under Section 139 of the said Act. Paragraphs 20 and 21 of the said report are material and are re-produced 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 nonexistence 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 detail of the passing of the consideration and existence of debt apparently would not serve the purpose of the accused. At the same time, it is clear that bare detail 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 record for getting the burden of proof shifted to the complainant. To disprove the presumptions the accused should bring on record such facts and circumstances upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance. those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue." 23. In my view considering the evidence which has come on record the Accused have probabilised their defence by showing that the non-existence of debt and consideration is probable. In my view the Accused have satisfied the tests laid down in the said Judgment (supra). 24. In my view considering the evidence which has come on record the Accused have probabilised their defence by showing that the non-existence of debt and consideration is probable. In my view the Accused have satisfied the tests laid down in the said Judgment (supra). 24. The Appellate Court has considered the findings of the Trial Court at close quarters in respect of the discharge of the burden by the Complainant as regards the existence of a debt as also the rebuttal of the presumption under Section 139 of the Act by the Accused. The learned Senior Counsel appearing for the Complainant, therefore, is not right in contending that the lower Appellate Court has not come to close quarters with the Judgment of the Trial Court. Considering the evidence on record, in my view, the findings of the lower Appellate Court on an appreciation of evidence, cannot be said to be perverse or the view taken by the lower Appellate Court cannot be said to be a view which is impossible to be taken on the basis of the material on record. 25. In that view of the matter, there is no merit in the aforesaid Appeals, which are accordingly dismissed. The bail bonds of the Accused stand cancelled. Appeals dismissed.