IMPORTANT POINT
A presumption of law under Section 139 NIA has to be rebutted by a“proof” and not by a explanation.

Britto N.A., J.—This is complainant’s appeal’ and is directed against judgment dated 28.12.2005 of the learned J.M.F.C., Canacona, acquitting both the accused under Section 138 of the Negotiable Instruments Act, 1881.

2. The case of the complainant is that the accused are the Managing Partner and Partner, respectively of Dhumane Rural Industries situated at Agonda. Canacona, and, as the accused were owing to the complainant a sum of Rs. 7,20,000 accused No.1 in the capacity of managing partner and on behalf of accused No. 2, as partner of the said Dhumane Industries issued a cheque bearing No. 929777 dated 18.6.2003 for a sum of Rs. 7,20,000 drawn on the Federal Bank Limited. Margao, in favour of the complainant, and the said cheque was issued at Chaudi, Canacona duly signed by accused No.1, for himself and on behalf of accused No. 2. The case of the complainant was also that when he deposited the said cheque in South Indian Bank, Panaji, Goa, firstly, in June, 2003 and secondly, in November, 2003, for encashment, the same was returned on the first occasion with remark that the funds were insufficient and on the second occasion with .remark that the payment was stopped by drawer, and, therefore the complainant by legal notice dated 6.12.2003demanded the amount payable of Rs. 7,20,000 with interest at the rate of 18% per year within fifteen days which notice the accused received and replied to dated 20.12.2003 stating that the subject cheque was stolen by one PA Sajid who was employed by them at their factory at Agonda and they had kept a cheque book of Federal Bank Limited, Margao with signed cheques with the said Sajid so that he could withdraw the money for day to day running of the business, and that the said Sajid was removed by them from their services about fifteen months back, and thereafter he was doing business with the complainant and the theft of the subject cheque was realized by the accused only after the receipt of the notice dated 6.12.2003 and that the subject cheque was one of the cheque leaves which was stolen by the said Sajid, and that the said Sajid and the complainant had entered into a criminal conspiracy to defraud the accused by using the said cheque leaf with the fond hope that the accused would succumb to the blackmail by the accused and the accused had no dealings with the complainant at any time whether at personal level or in respect of their business and that the accused did not owe any amount to the complainant and had no liability in respect of the said cheque which was dishonoured. The accused had further stated that they would not pay to the complainant any amount including the amount of Rs. 7,20,000.

3. In support of the complaint, the complainant examined himself. Accused No. 1 maintained their stand that the subject cheque was stolen by their Manager, the said Sajid and that they had not issued the subject cheque to the complainant. Accused No. 2 repeated the said plea and also gave evidence in support of the said plea by examining himself.

4. The learned trial Court without considering the evidence produced and largely on legal issues including that the firm was not made as an accused proceeded to acquit both the accused by the impugned judgment.

5. Admittedly, the subject cheque was signed on behalf of the firm by accused No. 1 as its partner/Managing Partner and the firm was not made as a party accused inasmuch as it was not the case of the complainant that he had lent the money to the said firm but on the contrary it was the case of the complainant that the subject cheque was given to the complainant by accused No. 1 in the capacity of the Managing partner and on behalf of accused No. 2 as partner of Dhumane Rural Industries. That the accused No. 1 could be convicted and sentenced as being a signatory to the cheque, learned counsel on behalf of the complainant had placed reliance on the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla.1 Nevertheless the fact remains that accus