The burden of proof to show that the cheques were issued without consideration rests on the accused, and the mandatory presumption in favor of the complainant under section 139 of the Act.

JUDGMENT :- This is complainant's appeal filed against the acquittal of the accused, under section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Order dated 30-12-2004 of the learned Chief Judicial Magistrate, Margao.

2. The case of the complainant, in brief, was that the accused had borrowed from the complainant on 1-6-2002 a sum of Rs. 2,00,000/- payable within a period of six months and the accused having failed to make the payment in cash, issued two cheques, the first dated 4-11-2002 and the second dated 5-11-2002, each for a sum of Rs. 1,00,000/-, drawn on Vysya Bank Ltd., Margao but when the complainant presented the said cheques through Corporation Bank, Murida Branch, both the cheques were returned dishonoured vide Memo dated 13-112002 on the ground that the funds were insufficient. The complainant by statutory notice dated 25-11-2002 called upon the accused to pay the said amount of Rs. 2,00,000/- covered by the said cheques within a period of fifteen days and as the accused failed to comply with the same, the complainant filed the complaint on 31-12-2002 and after the statement on oath of the complainant in person was taken on 12-3-2003, the learned Magistrate was pleased to issue process against the accused for the said offence. However, during the course of the trial, it is the father and special attorney of the complainant who was examined in support of the said complaint.

3. The case of the accused, as reflected from the cross-examination of the complainant! Attorney was that the said cheques were signed by him and were kept to be given to trawler owners from whom he would purchase the fish but they were misplaced and the complainant managed to put his name on the said cheques and has tried to extract the amount from the accused. However, the said plea put forward to the complainant was not even translated by the accused in his own words when the accused was examined under section 313 of the Code of Criminal Procedure, 1973. The accused also did not examine any witness in his said defence.

4. The learned Chief Judicial Magistrate has come to the conclusion that the said cheques were given much earlier than the dates mentioned therein forgetting that section l18(B) carried a presumption that every negotiable instrument bearing the date was made or drawn on the date mentioned therein and again forgetting that it was for the accused to prove that the said cheque was not issued on the date which appeared on the face of the said cheque. The learned CJ .M. has also held that the complainant who had given a loan to the accused was not examined without demonstrating as to why his examination was absolutely necessary for the complainant to prove the case. The learned CJ.M. also came to the conclusion that the complainant had failed to prove that the accused had issued the cheques to the complainant when the plea taken by the accused that the cheques were misplaced by him had remained in the realm of suggestions only and the accused had failed to prove the same by leading evidence as to under what circumstances the said cheques came to be issued by the accused to the complainant. The learned C.J.M. also acquitted the accused by observing that the presumption that the cheques were issued towards a legally enforceable debt under section 138 of the Act could be inferred only if it was proved beyond reasonable doubt that the accused had issued the cheques to the complainant which the complainant had failed to prove that the accused had issued both the said cheques to the complainant. The accused having failed to prove that he had misplaced the said cheques, as suggested to the complainant, in the course of cross-examination, the only inference which was possible to be drawn was that the cheques were issued to the complainant, as claimed by the complainant in the complaint and subsequently in his evidence before the Court.

S. As far as the appellate powers of this Court are concerned, the learned Counsel Mr.

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