This is an appeal filed by the Original Complainant against the Judgment and Order dated 11.12.2008, passed by the Judicial Magistrate First Class, 'C' Court, Margao, acquitting the Respondent herein under Section 138 of the Negotiable Instruments Act, 1881, ('Act', for short).

2. The parties would be referred to as per their status in the Trial Court.

3. The criminal case filed by the Complainant relates to the dishonour of the cheque of Rs.50,000/- issued by the accused.

The facts in brief can be stated thus :

It is the case of the Complainant that she had extended to the accused a loan of Rs.50,000/- as the accused was in financial difficulties and had approached her for the said loan. It is further the case of the Complainant that on receiving the said amount of Rs.50,000/-, the accused executed a Promissory note dated 28.07.2004, declaring that the accused has taken the said amount of Rs.50,000/-from the Complainant and promising to repay the said amount to the Complainant on 28.01.2005. It is further the case of the Complainant that thereafter the accused again approached her pursuant to which the Complainant again extended to the accused a further loan of Rs.15,000/-on receipt of which, the accused executed an affidavit dated 30.07.2004, declaring that the accused has taken the said amount of Rs.65,000/-from the Complainant. It is further the case of the Complainant that in repayment of the said loan amount of Rs.65,000/-, the accused issued to the Complainant cheque bearing no. 225843 dated 28.01.2005 for Rs. 50,000/-, drawn on account no. 6039 of the accused held in Bank of Baroda, Benaulim Branch. The Complainant presented the cheque to his Bank, Bank of India, Margao, who returned the said cheque dishonoured to the Complainant on 24.06.2005 alongwith a Memorandum dated 24.06.2005 of the Bank of Baroda, Margao Branch, as also the Memorandum dated 24.06.2005 of the Bank of Baroda, Benaulim Branch, which stated that the said cheque could not be honoured on account of insufficient funds. On the cheque being dishonoured, the Complainant issued a legal notice dated 05.07.2005 to the accused through her Advocate, which was received by the accused on 14.07.2005. Despite receipt of the legal notice, the accused failed to reply or pay the said cheque amount, giving rise to the filing of the complaint.

4. The case of the accused is that of total denial. The case of the accused as can be seen from the statement under Section 313 of the Cr.P.C. and his own deposition is that the Complainant had agreed to purchase shop bearing no. G-1 in the building constructed by the accused and it is towards part repayment of the purchase money paid by the Complainant to him that he gave to the Complainant the two blank cheques bearing no. 225842 and 225843 as he could not sell the said shop to the Complainant. It is further the case of the accused in the affidavit in evidence that the Complainant insisted upon shop no. G-1 and that the accused agreed to sell the said shop G-1 to her only on condition that on execution of the Sale Deed she returns to the accused the two blank cheques, and that only after Angelis Pereira, the third person to whom the shop was agreed to be sold, was made a consenting party to the Sale Deed. The accused had further stated in his evidence that before executing the Sale Deed in respect of the said shop, he had asked the Complainant to return the two blank cheques but the Complainant told him not to worry about them as she has already torn and thrown the cheques out.

5. The Complainant examined herself and Pw.2, who is the driver of the Complainant, whereas the accused examined only himself. The accused denied that there was any loan transaction between the Complainant and himself and deposed that the said two cheques were given for the reasons which have been mentioned herein above in the earlier paragraph.

6. The Trial Court framed four points, out of which, point no.1, reads as follows :

“Point