By this appeal the appellant takes exception to the judgment and order of acquittal dated 16.05.2007 passed by the Judicial Magistrate. First Class, Margao in Criminal Case No.212/0A/NI/2003/II acquitting the respondent for the offence under section 138 of the Negotiable Instruments Act.

2. The appellant is the complainant and the respondent is the accused in the above case. They shall be hereinafter referred to as per their status in the criminal case.

3. Briefly the background facts leading to the tiling of the appeal are as under:

4. The complainant is a businessman dealing in aerated waters having office at Braganza Mansion. Campo, Chandor, Salcete. Goa. He paid a sum of Rs.6,00,000/- to the accused for the purpose of purchasing machinery. The accused failed to deliver the machinery and in lieu of the same issued cheques to the complainant. One cheque was presented for payment which was returned with an endorsement 'funds insufficient'. Thereafter the complainant sent a registered A.D. notice demanding payment of the cheque amount. In view of failure to pay the amount the complainant filed the above referred criminal case.

5. The complainant examined himself as D.W.l. The accused examined herself in her defence and examined her husband Shri. Noshir Manecksahwa Langrana as D.W.2, Sitaram Patil as D.W.3 and Raghunath Sinari as D.W.4. The learned Magistrate vide the impugned judgment acquitted the accused on the ground that the cheque in question was not issued to the complainant in discharge of legally enforceable debt. In so far as the other predicates of Section 138 of the Act are concerned, the learned Magistrate recorded the finding in the affirmative.

6. The learned Magistrate held that the complainant had not disclosed true facts in the complaint. The complainant for the first time, in the cross-examination mentioned above the transaction regarding supply of machinery to him by the accused and her husband. The transaction to supply machinery was with both as they were having a firm under the name and style of Ahura Engineering Works and according to his information it was a partnership firm but he did not check the documents of the firm. The complainant further stated that at the relevant time the accused was doing business and he also came to know that she was working for a bank. He further stated that the accused and her husband were introduced to him by Mr. Garware. The learned Magistrate held that the evidence that the complainant did not establish that the accused had any connection with Ahura Engineering Works. The learned Magistrate relied upon the evidence of the accused in which he clearly stated that she had no business dealing with the accused and that she was not a partner in Ahura Engineering Works. The complainant admitted that there was no agreement between the accused and her husband or by the accused to supply machinery to the complainant. The accused in her evidence stated that she had kept blank cheque with signature from the joint account since her husband or her children might need the cheque. She categorically stated that the cheque was from the joint account and she had not issued the cheque in respect of any business transaction with the complainant. The accused stated that Ahura Engineering Works was a registered proprietary firm.

7. Shri. Noshir Langrana who has been examined as D.W.2 claimed that the accused was his wife and she was working i~ Bank of Baroda from 01.08.1966 till the time she took voluntary retirement on 31.03.2001. He stated that she had issued the cheque as security and the complainant had agreed to return the machinery to him. According to him, the machinery was delivered to the complainant on 30.12.1996 at Chandor, Salcete, Goa. He further stated that after delivery of the machinery there were some differences between him and the complainant and therefore, he agreed to purchase the said machinery which he would self and pay the money to the complainant. He fUl1her stat