The main legal point established is that the failure to rebut the presumption under Section 139 of the Negotiable Instruments Act can lead to conviction under Section 138 of the Act.

JUDGMENT

1. The present appeal is filed by the original complainant thereby challenging dismissal of her complaint and acquittal of the respondent by the learned Magistrate at Mapusa for the offence punishable under Section 138 of Negotiable Instruments Act.

2. Heard Mr. Pavithran A.V., learned counsel for the appellant, Mr. Galileo Teles, learned counsel for the respondent no.1 and Mr. Mahesh Amonkar, learned Additional Public Prosecutor for the respondent no.2.

3. With the assistance of the learned counsel appearing for the parties, I perused the record and proceedings of the trial Court, the impugned judgment and more specifically the evidence.

4. The point for determination is as under together with my evidence against it.

Whether the learned Magistrate committed patent error in accepting the so-called evidence of the respondent as rebuttal evidence, to rebut presumption under Section 139 of the Negotiable Instruments Act?

5. In a nutshell, the facts leading to the present proceedings are as under.

6. The appellant claimed that her deceased husband advanced friendly loan to the respondent to the tune of Rs. 7,00,000/- by issuing a demand draft, in presence of PW2. In discharge of such loan, respondent no.1 issued cheque bearing No.669919 drawn on South Indian Bank, Porvorim branch amounting to Rs. 7,00,000/- in favour of the appellant. On presentation of the said cheque, it was returned unpaid for funds insufficient. Legal notice was issued by the appellant demanding amount of cheque, which was received by respondent no.1. A complaint under Section 138 of Negotiable Instruments Act was filed before the learned Magistrate at Mapusa. On issuance of process, respondent no.1 appeared and contested the matter. On completion of trial, learned Magistrate though accepted that cheque bears signature of respondent no.1, observed that respondent no.1 succeeded in proving that there was no loan transaction between him and deceased husband of the complainant, which resulted in dismissal of the complaint and acquitting respondent no.1.

7. Learned counsel Shri Pavithran appearing for the appellant submitted that once it is established that cheque bears signature of respondent no.1 and on presentation, it was returned unpaid, presumption under Section 139 of Negotiable Instruments Act is required to be drawn. He submitted that legal notice was issued to respondent no.1 which he received but failed to reply and, therefore, at first instance he failed to show any plausible reason or defence in his favour so as to rebut presumption. He then submitted that on receipt of summons from the Magistrate, the respondent no.1 appeared and on explaining substance of accusation, he only denied the said substance but failed to take any specific defence. He then submitted that during cross-examination of complainant and her witness, there are no denials to the averments made in the affidavits and in fact such cross-examination further strengthened the presumption under Section 139 of Negotiable Instruments Act. He further submitted that respondent no.1 failed to examine himself though he desired to do so while answering statement recorded under Section 313 of Cr.P.C. Thus, there is practically no material/cogent evidence so as to rebut presumption under Section 139 of Negotiable Instruments Act.

8. Learned counsel Shri Pavithran then submitted that at one stage during cross-examination of the complainant, a suggestion was given to her as to whether she knows that accused repaid amount of Rs. 7,00,000/- to her deceased husband during his lifetime in cash, to which she showed ignorance. According to learned counsel Shri Pavithran, it is not just a suggestion but a specific defence and two things emerge from it. Firstly, by asking such question to complainant, accused admit that first of all he obtained loan of Rs.  7,00,000/- from the deceased husband of the complainant and that he paid it in cash. Therefore, learned counsel Shri Pavithran submitted that once accus