The legal principle established is that a complaint for dishonor of a cheque should be filed by the payee or holder in due course, and in this case, the appellant needed to establish his status as the proprietor of the payee concern.

JUDGMENT

1. The appellant, who was the original complainant in Criminal Case No.OA/354/2011/C on the file of the Judicial Magistrate, First Class, 'D' Court, Panaji, is aggrieved by the dismissal of his complaint and acquittal of the respondent no.1 of the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act' for short).

2. The allegation in the complaint was that the respondent-accused and his wife falsely represented the complainant that they were the absolute owners and possessors of the land bearing Survey No.16/8, admeasuring 2365 sq. mts. of Village Nachinola and induced them to purchase the same. Accordingly, on 04.09.2010, an agreement to purchase the said land was executed and as a part of consideration, an amount of ?25,00,000/- was paid to the accused and his wife. Thereafter, the accused and his wife failed to comply with the terms of the said agreement and also defaulted in making the repayment of the said amount within the agreed period. It is further the case of the complainant that the major part of the said land was in possession of one Mr. Jagdish Patel, who, in fact was running a Saw Mill thereon and accused had also taken money from him by agreeing to sell the same land to him. The complainant thereupon immediately contacted the accused and his wife and warned them that appropriate legal action would be initiated against them in case they do not fulfill their promise of returning the amount along with interest. The accused then requested the complainant to refrain from resorting to any such acts and promised to pay as per the terms of the agreement to the complainant the sum of ?32,00,000/- being refund of sum of ?25,00,000/- with interest accrued thereon and accordingly issued a cheque for ?32,00,000/-, in the name of his sole proprietary concern Zenith Constructions, which is the subject matter of the present case.

3. On presentation, the said cheque was returned dishonoured with the remark 'funds insufficient'. Payment was not made despite demand through statutory legal notice dated 15.10.2011, and ultimately the complaint in question was filed on 08.12.2011 before the Trial Court in respect of the disputed Cheque No. 574324 dated 03.10.2011 of ?32,00,000/-.

4. In the cross examination of the complainant, execution of the agreement dated 04.09.2010 was not denied nor the fact of receipt of the amount of ?25,00,000/-. The fact of issuance of statutory notice and receipt of the same by the accused was also not denied. It was suggested in the cross examination of the complainant that the accused had given a blank cheque but it was as a security and not to meet any legal liability and that the money was given as loan. As such, the accused had admitted his signature on the cheque and the execution of the cheque. Therefore, the presumptions under Sections 118 and 139 of the Act were attracted. Merely suggesting to the complainant that the cheque was given as security is not sufficient to rebut the statutory presumption which is in favour of the complainant. The agreement dated 04.09.2010 executed between the accused, his wife and the complainant does not speak of any cheque being given as security. Moreover, accused did not step into the witness box in support of his statement. On the contrary, the accused in his statement under Section 313 of the Code of Criminal Procedure, 1973 admitted that the complainant was induced by him and his wife to advance a sum of ?25,00,000/- by misrepresentation and thereby he cheated the complainant. The accused further admitted in his statement under Section 313 of Cr.P.C. that he and his wife falsely represented to the complainant that they were absolute owners in exclusive possession of the plot of land bearing Survey No.16/8 of Village Nachinola, Bardez, Goa, which was free from any encumbrances and which representation were false to his knowledge. The evidence with regard to payment advanced to the accused, dishonouring of