IMPORTANT POINT
Presumption which is raised under Section 139 of Negotiable Instruments Act has to be rebutted by accused on preponderance of probability and not beyond reasonable doubt.

V.M. Kanade, J.: —The appellant herein is the Original complainant. He is challenging the Judgment and Order passed by the Ist Additional Sessions Judge, Panaji, who by his Order dated 5-9-2003 acquitted the Respondent/Accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) and who by his Judgment and Order was pleased to set aside the Order passed by the Judicial Magistrate, First Class, Panaji, who had convicted the accused under Section 138 of the Act.

2. The brief facts which are relevant for the purpose of deciding this Criminal Appeal are as under:

The complainant is a Company registered under the Companies Act and its registered office is at Panaji, Goa. The accused No. 1 is also a Private Limited Company having its office at Margao, Goa and the Accused No. 2 is the Managing Director of accused No. 1 which admittedly is under the control of Respondent No. 2 and its day to day management. The accused had issued a post dated cheque dated 29-12-1999 for an amount of Rs. 10,00,000/- in favour of the Complainant drawn on Saraswat Co-operative Bank Ltd. towards the discharge of liabilities of accused No. 1 in respect of the materials taken by them on credit from the Complainant. This cheque was deposited by the Complainant with their bankers. However, the said cheque was returned by the said Bank with an endorsement “exceeds arrangement”. The complainant thereafter issued a legal statutory notice dated 16-3-2000. However, the accused did not give any reply to the said notice nor payment was made by the accused within 15 days from the receipt of the said notice. The complainant, therefore, filed a complaint under Section 138 of the said Act. Process was issued by the Magistrate on the said complaint after the statement of Sadashiv Shirodkar was recorded in verification of the complaint. The trial Court convicted the Respondent/Accused under Section 138 of the said Act and sentenced him to undergo imprisonment till rising of the Court and further directed him to pay compensation of Rs. 10,00,000 and in default of payment of compensation to undergo 6 months Simple Imprisonment. Against the said Order, the Accused preferred an Appeal before the Sessions Court being Criminal Appeal No. 78 of 2002. The Additional Sessions Judge, Panaji, by his Judgment and Order dated 5-9-2003 set aside the Order passed by the Magistrate and allowed the Appeal and acquitted the Accused of the offence punishable under Section 138 of the said Act. Against the said Order, the Original Complainant has filed this Appeal against acquittal.

3. Submissions:

The learned Counsel appearing on behalf of the Appellant has submitted that the Additional Sessions Judge has erred in coming to the conclusion that there was no existing debt or liability and had further erred in relying on a Judgment in the case of R. Sreenivasan v. State of Kerala1 and in the case of Taherr Khambati v. M/s. Vinayak Enterprises2 and the same had been overruled by subsequent Judgment of the Supreme Court. He submitted that the lower appellate Court had failed to take into consideration that the Complainant in his cross-examination had clearly admitted that there was an existing debt and liability payable to the Complainant and that the cheque was issued for discharging the said liability. He submitted that, therefore, the finding of the Sessions Court was perverse to the extent that he did not take into consideration the specific admission given by the Accused in his cross-examination. He further submitted that the Sessions Court had clearly erred in coming to the conclusion that the trial Court had only considered the point whether the said cheque was issued by way of security. He submitted that the trial court in fact had considered the evidence adduced by the Complainant and the admissions which were given by the Accused in its totality and thereafter has given a specific finding that the cheque was issued towards