This revision is directed against the judgment/order dated 19/08/2009 of the learned Additional sessions Judge, Mapusa by which the learned Additional Sessions Judge has upheld the judgment/order dated 12/03/2009 of the learned JMFC, Bicholim, convicting and sentencing the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

2. The complainant is a Co-operative Society. The husband of the accused was a Secretary of the said Society during the tenure of one Patel, who was its Chairman. The case of the complainant is that the accused gave a cheque to the complainant dated 27/07/2005 for Rs.1 lac towards part repayment of the amount due by way of liability towards the complainant in the account no.28 of the said Dnyaneshwar Parob and when the complainant deposited the said cheque in the Goa State Co-operative Bank Ltd., Bicholim, it was returned dishonoured on the ground that the funds were insufficient. The complainant, therefore, sent a notice dated 4/01/2006, to the accused to make the payment within 15 days. The accused replied to the said notice, inter alia, stating therein that there was no loan account bearing no.28 in the name of her husband Dnyaneshwar Parob, with the complainant. It was also stated that cheque in question was deposited with the complainant as security/guarantee as the husband of the accused was the Secretary of the complainant-society and there was no transaction between the accused and the complainant and so also between the husband of the accused with the complainant.

3. The complainant examined their Chairman Shri Tulsidas Parab in support of the complaint. The complainant also examined the Manager of the Bank of the accused, to say that the cheque was dishonoured on account of the insufficient funds in the account of the accused. The accused also gave her evidence and in her evidence categorically stated that her husband was working for the complainant-society for about 9 years, prior to two years. She also categorically stated that she had not obtained any loan from the complainant nor had stood as a surety for the accused at any time.

4. The learned trial Court in her judgment dated 12/03/2009 observed as follows;

“9. No loan documents have been produced by the complainant to prove the alleged loan transaction of the husband of the accused with the complainant society. However, in the cross it is stated by PW1 that Dyaneshwar Parob i.e. the husband of accused obtained loan of Rs.50,000/- from the complainant society and that his parents as well as the accused were the guarantors to the said loan transaction. As stated by PW1, said loan was repayable for (sic. after) a period of five years. There is no documentary evidence in support of such testimony of PW1. Further according to PW1, the complainant society had sent a notice to the accused in respect of the said loan, she being one of the guarantor. But the said notice is also not produced by PW1.” [Note : The notice was in fact produced]

5. The learned Additional Sessions Judge also observed that;

“In this context, learned trial Judge is right in observing that no documentary evidence is produced on record by PW1 to substantiate the above stand of complainant society but it is material to note that in his cross-examination, PW1 had made it clear that the in-laws of the accused as well as the accused are the guarantors to the loan of Rs.50,000/- obtained by the husband of the accused form the complainant society.”

The learned Additional Judge further noted that;

“It may be mentioned here, that when PW1 showed his willingness to produce the records to show that the husband of the accused had obtained loan from the complainant society, the accused did not request the Court to direct PW1 to produce such records and therefore in the absence of such request the suggestion put to PW1 that Dyaneshwar has not obtained any loan from the society, is of no significance.”

The learned Additional Sessions Judge further observed