N.A. Britto, J.

This is a complainant's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, (Act, for short), by Order date 11.4.2005 of the learned J.M.F.C., Bicholim.

2. The case of the complaint, in belief, was that the complainant was having a business in the name of M/s. Rakesh Cashew Industry, situated at Gokulwadi, Sankkali, Goa, and that somewhere in the month of April 2003, the accused had purchased from the complainant, cashew nuts of different variety worth Rs. 83,500/- and the accused had paid Rs. 3,500/- in cash at the time of taking delivery of the said cashew nuts and had issued a cheque for the balance amount of Rs. 80,000/- bearing No. 023612 dated 10.5.2003, which the complainant presented in his account in Lokmanya Co-operative Credit Society Ltd., Sankhali Branch, for encashment somewhere in October 2003 but the said cheque was returned with a memorandum of Vividha Urban Co-operative Credit Society, Sankhali, dated 17.10.2003 stating that the payment was stopped by drawer.

3. The complainant after receiving the intimation from the said Lokmanya Co-operative Credit Society Ltd., dated 23.10.2003, sent a statutory notice on 29.10.2003, calling upon the accused to make the payment of Rs. 80,000/- within 15 days, which the accused received on 1.11.2003 and the accused replied vide reply dated 15.11.2003, stating that the accused did not have any transaction with the complainant. The accused also stated that he had obtained a cheque book from the said Vividha Urban Co-operative Credit Society Ltd., Sankhali, on 14.1.2003, which he had lost and accordingly, had lodged a complaint to the said Society.

4. In support of the complaint, the complainant examined himself had the Branch Manager of Lokmanya Co-operative Credit Society Ltd., Sankhali. The case of the accused, in his statement recorded under Section 313 of the Code, (Code of Criminal Procedure, 1973), was that his cheque book was lost and he had not issued the cheque to the complainant. The accused further stated that he had given a letter to the Bank stating that his cheque book was lost. The accused examined himself and produced an intimation dated 14.1.2003, given by him to his said Bank Vividha Urban Co-operative Credit Society Ltd., intimating that he had lost the cheque book containing ten cheques and further stating that he had not issued any cheque to anyone from said book. The accused produced another letter dated 30.6.2003, addressed to his said Bank stating that because of their negligence, they had intimated that the cheque was dishonoured because funds were insufficient. The accused also produced another letter dated 16.11.2003, issued by his said Bank, clarifying that the correct position why the cheque was dishonoured was that the payment was stopped by the drawer and not that the funds were insufficient. The accused also examined himself the Branch Manager of Vividha Urban Co-operative Credit Society Ltd., Sankhali, and another Clerk from the same Society, to confirm the intimation dated 14.1.2003, by the accused as regards the loss of the cheque book.

5. The learned Magistrate held that the cheque was presented by the complainant within its validity period but since the cheque was presented in October 2003, it raised a doubt as regards the credibility of the case of the complainant. According to the learned Magistrate, the presumption available to the complainant under Section 139 of the Act, was rebutted by the accused, and, the learned Magistrate accepted the plea of accused that the cheque book was lost since the evidence of the complainant was far from satisfactory, considering the facts and circumstances of the case.

6. On behalf of the complainant, learned counsel Shri Bhobe submits that it is very difficult to believe that in case the cheque book was lost by the accused, of all the persons, the cheque book was found by a person who had sold cashew nuts to the accused. Learned