The accused can rebut the presumption under Section 139 of the Negotiable Instruments Act by presenting evidence that casts doubt on the complainant's case.

By the Court.-The complainant, being aggrieved by the judgment passed by the Judicial Magistrate. First Class, Margao dated 31st May, 2003 in criminal case No. 188/0A/NI/2002/I. acquitting the respondent No. 1/accused for an offence punishable under Section 138 of the Negotiable Instruments Act has filed the present appeal.

2. The facts in brief, as are necessary for the decision of this appeal are set out hereunder :

The appellant/complainant filed the aforesaid complaint case before the Judicial Magistrate. First Class at Margao, alleging therein that the respondent No. 1/accused had requested the complainant for a loan of Rs. 1,65.000/-. The complainant. in view of the good relations and in view of the urgent need of the accused advanced a hand loan without interest of Rs. 1.65.000/-. The accused towards part re-payment of the loan issued cheque bearing No. 768312 dated 6th February, 2002 drawn on the Bank of India, Margao Branch, for Rs. 1.02.400/-. On presentation of the said cheque by the complainant, the cheque was returned unpaid on account of insufficient funds. Despite receipt of the notice, dated 19th February, 2002, the accused failed to make the payment and. therefore, the complaint under Section 138 of the Negotiable Instruments Act. The learned trial Magistrate after recording the verification statement, issued process against the accused.

3. The substance of the accusation was explained to the accused vide Exhibit 7. The accused pleaded not guilty and claimed to be tried. The complainant in support of his case examined 3 witnesses while the accused examined herself as DW 1. The learned trial Magistrate for the reasons set out in the judgment acquitted the respondent No.1/accused and hence this appeal at the behest of the original complainant assailing the judgment of acquittal.

4. Mr. Arun Bras De Sa, the learned counsel appearing for the appellant has urged that the learned trial Court has erred in law in not raising the presumption under Section 139 of the Negotiable Instruments Act against the accused. It is urged by the learned counsel for the appellant that once the presumption is drawn it is for the accused to rebut the said presumption by leading evidence, which is reliable and cogent. The learned counsel for the appellant has further urged that the explanation of the accused which is wholly inconsistent with the case made out in the cross-examination is not sufficient for rebutting the presumption.

5. Mr. Kantak the learned counsel appearing on behalf of the respondent No.1/accused has submitted that the admissions of the complainant in the cross-examination coupled with the evidence of the accused is sufficient for rebutting the presumption. Mr. Kantak has further urged that in an appeal against acquittal the High Court would not interfere merely because a second view was possible. unless it was demonstrated that the view taken by the learned trial Court was wholly a perverse view-a-view not possible to be taken on the basis of the evidence on record. According to Mr. Kantak if the appellant fails in pointing out perversity in the reasoning of the learned trial Court the High Court in appeal against acquittal would not interfere.

6. In order to appreciate and evaluate the submissions of the learned counsel for the parties it is useful to make a reference to the evidence of the complainant and the accused.

7. PW 1 Floyd Coutinho states that the accused had approached him with a request for loan of Rs. 1.65.000/- for investing in the business. He states that he gave the said amount on 20th August 2001 at his residence. The accused had agreed to repay the said amount, without interest within a period of four months. On berating the accused for payment. the accused had issued a cheque bearing No. 768312 dated 6th February. 2002. for Rs. 1.02,400/-. The complainant deposited the said cheque in his bank on the same day. The cheque was returned unpaid on account of insufficient funds. The said cheque is at E