IMPORTANT POINT
Presumption under Section 139 of Negotiable Instruments Act in favour of complainant is a rebuttable one which could be rebutted by leading evidence or brining facts on record in cross-examination.

N. A. Britto, J.—This is complainant’s appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Judgment/Order dated 12.12.2003 of the learned Judicial Magistrate, First Class, Margao.

2. The case of the complainant was that the accused had issued to the complainant a cheque No.0310348, dated 1.9.2000 for Rs.50,000 drawn on Madgaum Urban Cooperative Bank Ltd. towards money which was due and payable to the complainant by the accused, and, when the complainant presented the said cheque for payment through its bankers, namely Indusind Bank Limited the same was returned with endorsement ‘funds insufficient’ as intimated by the said Indusind Bank Limited to the complainant on 10-1-2001.

3. The complainant claimed that thereafter, he issued a legal notice to the accused dated 18-1-2001 by Registered Post A.D. informing the accused about the cheque and calling upon the accused to make payment due on the said cheque within 15 days. According to the complainant, the accused was intimated about the notice by postal authorities on 26-1-2001 and the said postal notice was returned by the postal authorities, and, as the accused failed to make the payment, the complaint filed the complainant against the accused under Section 138 of the Act.

4. In support of the complaint, the complainant, which is a registered company, examined its Managing Director and produced the necessary documents, namely, a resolution of the Company, the said cheque, the memo of return of cheque unpaid, the postal article/notice returned by the Postal Authorities and a copy of notice. The accused did not produce any evidence, but in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (Code, for short), stated that he had issued the said cheque as a security and not by way of any liability. The accused also stated that he was a Contractor and had taken up the contract of erecting a building for the complainant-Company which owed to him Rs.3 lakhs and a half and he had filed a Civil Suit against the said Company for the recovery of the same. The accused stated that he did not owe any amount to the Company.

5. The learned Judicial Magistrate, First Class, after assessing the evidence produced by the complainant acquitted the accused under Section 138 of the Act on three counts. Firstly, the learned Judicial Magistrate, First Class, held that P.W.1, Deepali Kumar, as a Managing Director of the complainant-Company had no authority to file the complaint and to depose on behalf of the Company. Secondly, the learned Judicial Magistrate, First Class, held that the notice of demand was not duly served on the accused. Thirdly, the learned Judicial Magistrate, First Class, also held that the evidence of complainant was shaken in cross-examination on the point of actual liability of the accused and that the accused had succeeded in creating a reasonable doubt about the claim of complainant of his existing liability.

6. According to Mr. C. Coutinho, the learned Counsel appearing on behalf of the accused, the learned Judicial Magistrate, First Class, has actually held that the presumption available to the complainant that the cheque was issued towards the discharge of existing debt or liability was rebutted by the accused, though the learned Judicial Magistrate, First Class did not state the same in so many words.

7. On the first count, Mr. A. F Diniz, the learned Counsel appearing on behalf of the complainant, in support of his submission that P.W.1, Deepali, being the Managing Director of the complainant-Company and having produced the resolution-Exh.1, signed by the Chairman of the Company had authority to file the complaint and depose on behalf of the complainant has placed reliance on the case of United Bank of India v. Naresh Kumar and others1, and M/s. M.M.T:C. Ltd. and another v. M/s. Medchl Chemicals and Pharma (P) Ltd.2

8. I need only refer to this last decision, in view