IMPORTANT POINT
The court must be on guard to see that merely on the application of the presumption as contemplated under Section 139 of the Act, no prejudice is caused to a party.

A.P. Lavande, J.—By this appeal, the appellant/original complainant challenges the judgment and order dated 30.6.2006 passed by the Judicial Magistrate, First Class “C” Court, Mapusa in O.A. Criminal Case No. 636/P/03/C acquitting the respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act (“The Act” for short). The parties shall, hereinafter be referred to as their status before the learned Magistrate. .

Briefly, the case of the complainant is as under:

On 31.8.2004, the accused agreed to purchase a Crusher Unit situated at Alome, Hankane, Ibrampur Pernem, Goa and an agreement was executed between the complainant, and the accused on the same day. The accused issued, in favour of the complainant, three cheques drawn on State Bank of Mysore, Panaji Branch for a sum of Rs.1,00,000 each. The accused requested the complainant time to arrange the funds and finally when the validity of the cheques was to expire, the accused replaced the earlier cheques with three other cheques drawn on State Bank of Mysore, Panaji Branch for Rs. 1,00,000. Once again, the accused requested the complainant some time to arrange the payment in respect of the said cheques. After waiting for a period of over 5 months, the complainant presented one cheque dated 12.4.2003 with State Bank of India, Mapusa Branch, Mapusa which was returned with an unpaid for “insufficient funds”. Thereafter, a notice was given to the accused calling upon him to pay the cheque amount. The notice was returned with endorsement “refused returned to sender”. The notice was again sent to the accused at the correct address of the accused, but the accused did not receive said notice nor made payment of the cheque amount or any part payment thereof. The complainant filed complaint against the accused for the offence punishable under Section 138 of the Act. The accused pleaded not guilty. To prove his case, the complainant examined himself and placed on record an agreement dated 31.8.2002 and produced several documents. The accused examined himself as DW1 and examined one Ladu Naik as DW2. The learned Magistrate, by the impugned judgment and order, held that the accused had paid entire amount in respect of agreement entered into between the accused and the complainant and, therefore, the accused did not owe any amount to the complainant. The learned Magistrate also held that the complainant had admitted in the cross-examination that the consideration in respect of transfer of crusher and leasehold rights, was Rs.4,50,000 and that he had received the said amount. He had also admitted that he had received a sum of 50,000 as an advance. The learned Magistrate, therefore, held that there was no liability on the part of the accused to make any payment to the complainant. The learned Magistrate held that the offence under Section 138 of the Act, was not made out and consequently, acquitted the accused.

2. Mr. Usgaonkar, learned counsel appearing for the appellant/complainant submitted that the learned Magistrate has not properly marshalled and appreciated the evidence led by the parties. He invited my attention to the three agreements dated 27.6.2002 (Ex. PW1g), 31.8.2002 (Ex. PW1/A) and 14.10.2002 (Ex. PW1/h), he further submitted that the complainant has proved beyond reasonable doubt that the accused had issued cheque in question for discharge of his debt of liability towards the complainant. According to Mr. Usgaonkar, learned Magistrate has completely misread the evidence led by the parties. He further submitted that the defence of the accused that the cheque was issued for payment of the said amount to Mr. Deshprabhu in order to secure the title to the property which was agreed to be transferred in favour of the accused, is falsified by DW2 Mr. Ladu Naik. The learned counsel, therefore, submitted that the findings recorded by the Magistrate, are perverse and the accused has not been able to discharge the presumption under Section 139