IMPORTANT POINT
Where accused succeeded in rebutting the presumption under Section 139 of NI Act it was necessary for complainant to have proved the debt.

N.A. Britto, J.—This is complainant’s appeal and is filed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by judgment dated 15.1.2008 of the learned J.M.F.C., Margao. By consent heard forthwith.

2. The case of the complainant, in brief, was that at the request of the accused the complainant on 2.1.2002 advanced to the accused a sum of Rs. 5,00,000 against a hundi of the same date and towards the repayment of the said loan, the accused issued a cheque bearing No.468393 dated 7.5.2002 which cheque, admittedly, when presented for collection bounced and the complainant having sent a notice, the same was not replied to nor complied with, and as such the complaint was filed and the complainant examined himself in support of his complaint.

3. On the other hand, it was the case of the accused, that he had not received any money from the complainant and that he came to know the complainant only on 2.1.2002 when he was introduced to the accused by one Raison Almeida. It was also the case of the accused that the said Raison Almeida and the complainant forced him to sign some hundis and notarized the same for an illegal purpose of the said complainant and Raison Almeida. In support of his plea, the accused examined himself and the Bank Manager of Central Bank, the Notary before whom the hundi was executed, and two Police Officers who investigated the matter as regards the allegation that the said hundis and/or the cheque were executed under threat. P.S.I. Prabhudessai DW 5 found that there was no threat given to the accused.

4. Be that as it may, the learned Trial Court came to the conclusion that the defence of the accused appeared to be probable, firstly, because inspite of the letter dated 5.1.2002 i.e. three days of the execution of the hundi, the complainant chose to remain silent and did not act, and, secondly, the hundi shows the name of the complainant as purchaser, when in his cross-examination the complainant had stated that the hundi was duly executed and was handed over to him which facts raised a suspicion as to whether the complainant had come in possession of the cheque on 7.2.2002. The learned Magistrate also took note of the fact that previously the accused had not issued any cheques which were type written which statement fortified the plea of the accused that there was no occasion for the accused to have given type written cheque to the complainant. The learned Magistrate therefore proceeded to acquit the accused as aforesaid.

5. There is no doubt that the accused has signed the subject cheque regarding which there was no dispute and as such there was a presumption available to the complainant in terms of Sections 118 and 139 of the said Act. However, it was a specific case of the complainant that the subject cheque was given by the accused to the complainant on 7.5.2002 in repayment of the loan given by the complainant to the accused on 2.1.2002.

As far as the giving of the cheque on 7.5.2002 is concerned, the presumption available to the complainant was sufficiently rebutted by the accused by production of letter dated 5.1.2002 Ex. 23/C, letter dated 24.1.2002 written to the Bank and complaint dated 1.2.2002 to the Police. The accused had categorically stated in his evidence before the Court having sent the said letter dated 5.1.2002 under certificate of posting. There was no denial on behalf of the complainant, as regards the receipt of the said letter and the learned Magistrate, in such a situation, was certainly justified in concluding that the complainant had received the said letter sent under certificate of posting. The complainant suppressed this letter in not referring to it in his complaint. The letter dated 24.1.2002 was proved through Santosh, the Bank Manager and the complaint to the Police through P.S.I. Prabhudessai. The letter dated 5.1.2002 to the complainant as well as the letter dated 24.1.2002 to the Bank were sent admittedly prior to the date