R.C. Chavan, J.

The complainant in Criminal case No. 320/2003 before the learned Judicial Magistrate, First Class, Vasco has preferred this appeal to challenge the acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act recorded by the learned Magistrate.

2. The facts which gave rise to the filing of the complaint by the appellant are as under :

"The appellant claimed that the respondent was known to him since about 5 to 6 years prior to the incident. The respondent approached the appellant in October, 2002 and sought a loan of Rs. 1,80,000/- and agreed to repay it within an year. Accordingly, the appellant paid a sum of Rs. 1,80,000/- in the first week of November, 2002. Towards the repayment of the said amount, the respondent issued a post dated cheque for a sum of Rs. 1,80,000/- bearing No. 625372 dated 18.8.2003 drawn on Vijaya Bank, Vasco. This cheque was issued in presence of Mr. Macus Dias and Mr. Damodhar Marsekar. Upon presentation of the cheque in the first instance, it bounced and was presented again on 22.8.2003 at the instance of the respondent. It was again dishonoured by the Bank for want of sufficient funds. On 23.8.2003, the appellant issued a notice demanding the amount due. The notice was received by the respondent on 28.8.2003. However, the respondent failed to pay the amount under the cheque, which was demanded and hence, the appellant filed a complaint before the learned Judicial Magistrate, First Class."

3. The appellant examined himself in support of his case and tendered necessary documents. No other witness was examined on behalf of the appellant. Though the respondent had stated in his examination under Section 313 of the Criminal Procedure Code that he wanted to examine himself, he did not examine himself. After considering the evidence tendered, the learned Magistrate held that the appellant failed to prove that the cheque was issued in discharge of legally enforceable debt or liability, and also that the complainant failed to prove that it was dishonoured during the period of its validity. The learned Magistrate proceeded to acquit the respondent which led to the filing of the present appeal.

4. I have heard Advocate Kerkar for the appellant and Advocate Salkar for the respondent. The scope of interference in appeal against acquittal is extremely limited and the Appellate Court would be justified in setting aside the judgment of acquittal only if it is shown that such judgment was perverse. For this purpose learned counsel for the respondent has placed reliance in the case of C. Antony v. K.G. Raghavan Nair, reported in AIR 2003 SC 182. With this limitation in view, with the help of both the learned counsel, I have gone through the entire evidence on record and examined the findings recorded by the learned Magistrate. It is pertinent to note that in the statement under Section 313 of the Criminal Procedure Code, the respondent had denied having issued cheque. However, the cross-examination of the appellant would show that the respondent claimed to have received only a sum of Rs. 15,000/- as a loan and also claimed to have repaid a sum of Rs. 15,000/- on 18.9.2003 as "part payment". This suggestion is admitted by the appellant. It may be useful to reproduce the sentence in the cross-examination as it is.

"It is true that accused had paid an amount of Rs. 15,000/- to me on 18.9.2003 as a part payment by D.D."

This would be inconsistent with the respondent's claim that no amount was due and no cheque was ever issued. Otherwise the question of paying Rs. 15,000/- as "part payment" would not arise. It would show that more amount was due.

5. The appellant had stated that the cheque was received by him in presence of two witness, namely, Marcus Dias and Damodar Marsekar, both of whom have not been examined by the complainant. However, non-examination of these two witnesses cannot lead to the conclusion that such a cheque was not issued, since law does no