IMPORTANT POINT
When the presumption under Section 139, NIA is not rebutted the accused may be liable to be convicted.

Lavande A.P., J.— By this appeal, the appellant takes exception to the judgment and order dated 21,8.2006 passed by the Additional Session Judge, South Goa, Margao in Criminal Appeal No. 25/2006 by which the judgment and order dated 9.6.2006 passed by the Judicial Magistrate, First Class, Vasco in Criminal Case No.821/OA/NIA/2005 has been set aside. The learned Magistrate convicted the respondent No.1 for the offence under Section 138 of the Negotiable Instruments Act (“The Act” for short) and sentenced him to undergo imprisonment for a period of 3 months and to pay compensation of Rs. 5,50,000 to the complainant/appellant and in default to undergo simple imprisonment for a period of 3 months. The appellant is the complainant and the respondent No. 1 is the accused in the case before the learned Magistrate. The parties shall, hereinafter, be referred to as per their status before the learned Magistrate.

2. In nut shell, the case of the complainant is as under:

The accused issued cheque dated 26.5.2005 drawn on State Bank of India, Vasco Branch for an amount of Rs. 5,00,000 towards the payment of his share received by the accused by way of sale of the property. The complainant presented the said cheque for payment but the same was remark ‘payment’ stopped by the drawer and the same was intimated to the complainant on 26.5.2005. Thereafter, the complainant sent a demand notice dated 21.6.2005 to the accused demanding that payment of said cheque within 15 days. The said notice was received by the accused on 21.6.2005, but the accused failed to pay the amount. The accused sent reply dated 30.6.2005 denying that the said cheque was issued towards the payment of the share of the complainant.

3. The compainant examined two witnesses including himself as PW1 and Advocate Raja Kumar Naik as PW2. The accused examined himself in defence.

4. The learned Magistrate did not accept the defence of the accused since the accused had admitted his signature on the cheque and held that the accused has not rebutted the presumption under Section 139 of the Act. The learned Magistrate did not accept the defence of the accused that he had issued a blank cheque in favour of the complainant for carrying out development in the property on the ground that it was a case of the accused himself that he had done major improvements in the property and was looking after the same and as such the possibility of the accused issuing a blank cheque to the complainant was ruled out. The learned Magistrate also relied upon the fact that during the period from 7.8.2004 till 29.1.2005, the amount in the bank account of the accused was in the range of Rs. 1,000 to 2,000 and on 24.5.2005, the accused had deposited Rs. 5,00,000 in his account and, therefore, the question of the accused giving a blank cheque to the complainant in order to carry out development in the property, did not arise. The learned Magistrate held that the defence of the accused was false and concocted. The learned Magistrate also relied upon the fact that this defence was not taken in the reply dated 30.6.2005 sent on behalf of the accused to the notice sent by the complainant before filing of the case. The learned Magistrate also held that the deposit of Rs. 5,00,000 on 24.5.2005 led credence to the case set up by the complainant that the cheque for Rs. 5,00,000 was given towards the share of the complainant in the property which was sold. The learned Magistrate, therefore, held that the complainant had proved that the cheque was issued to discharge legally enforceable liability. Consequently, the learned Magistrate convicted and sentenced the accused as above.

5. The learned Additional Sessions Judge did not accept the defence version that the accused had issued a blank cheque to the complainant for carrying out development in the property. However; the learned Judge held that the exact shares of the parties were not mentioned in the sale deed and the complainant had come out with the story