This appeal questions appellate judgment of the learned Additional Sessions Judge, Mapusa whereby the learned Additional Sessions Judge set aside judgment of conviction of the respondent for offence punishable under Section 138 of the Negotiable Instruments Act and sentence of paying compensation quantified at Rs.4,00,000/- or in default to suffer imprisonment for one year imposed upon the respondent by the learned JMFC, 'E' Court, Mapusa Goa on the conclusion of trial of Criminal Case no.OA/NIA/759/P/06/E before the learned Magistrate.

2. The facts which are material for deciding this appeal are as under :

The appellant claimed to be a friend of respondent. The respondent approached the appellant in last week of March, 2006 stating that the respondent wanted to renovate his premises and, therefore, needed a sum of Rs.3 lacs which he would repay in about 7 to 8 months. The appellant claimed to have advanced a sum of Rs.2,40,000/- against which the respondent issued 10 cheques dated 31/03/2006 to 30/09/2006 for amounts ranging from Rs.20,000/- to Rs.35,000/-. The first cheque for Rs.20,000/- dated 31/03/2006 was realised. The second cheque was dishonoured on the ground that the funds were insufficient. In respect of this second cheque dated 30/04/2006, the appellant issued a notice and upon failure of the respondent to pay the amount demanded, filed a criminal case bearing no. 478/ 2006, which was pending when the complaint dated 18/12/2006 was filed in respect of dishonour of the remaining cheques. The appellant presented the remaining cheques on the dates they were due and since those cheques were dishonoured, the appellant issued notice to the respondent calling upon the respondent to pay the amounts under those cheques. Since the respondent did not pay the amount of Rs.2 lacs demanded within 15 days of the receipt of notice, the appellant filed the complaint before the learned Magistrate at Mapusa. After examining the complainant, the learned Magistrate directed issuance of process.

3. After respondent appeared, substance of accusations was explained to the respondent and since he pleaded not guilty, he was put on trial at which the appellant examined himself in order to prove his case. The respondent was examined under Section 313 of the Criminal Procedure Code and sought to tender evidence in defence. He examined himself as DW1 and one Lawrence Fernandes as DW2. The defence of the respondent was that the appellant came to his house on 31/03/2006 at about 9.30 a.m. with unknown persons and demanded "hafta", protection money of Rs.3 lacs possibly alleging that the respondent had sold his premises and, therefore, respondent had huge amount with him. On respondent telling the appellant that he had no money, the appellant saw the cheque book lying on the table and forced the respondent to write the cheques in question. The respondent stated that there was no question of respondent being in need of money to renovate his business premises by name 'Sunrise Bar and Restaurant', since he had already sold the premises 'Sunrise Bar and Restaurant' on 11/08/2005 and had placed DW2 Lawrence Fernandes in its possession. In fact, a shop by name M/s. Elisha Enterprises dealing with consumer goods had been inaugurated in the premises on 11/10/2005. Further, there was no question of the appellant being in a position to advance any amount to the respondent in the shop on 31/03/2006. After considering this evidence tendered before the learned Magistrate, the learned Magistrate held that the appellant had proved the charge and convicted the respondent as aforementioned. Aggrieved thereby, the respondent preferred an appeal before the Court of Sessions.

4. The learned Additional Sessions Judge held that the respondent had proved that the defence was probable and, therefore, set aside the conviction. While doing so, he relied on several judgments and also invoked provisions of Section 269SS and 271D of the Income Tax Act. He observed that th