IMPORTANT POINT
A presumption is not itself evidence but only makes a prima facie case for a party for whose benefit it exists.

N.A. Britto, J.—This a complainant’s appeal and is directed against judgment dated 27.8.2008 of the learned J.M.F.C., Margao, acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881.

2. The complaint was filed for dishonour of two cheques, details of which are as follows:

1. Cheque No. 162965, dated 12.1.2007 for Rs. 6,97,200.

2. Cheque No. 0188869, dated 12.1.2007 for Rs. 4,98,000.

3. The first cheque was drawn on ICICI Bank and the 2nd was drawn on Bank of lndia. There is no dispute that both the cheques were presented by the complainant for encashment but were returned with endorsement that the funds were insufficient. The case of the complainant is that the said two cheques were given by the accused to defraud him and without any intention to pay the amount due of Rs. 11,95,200 knowing fully well that the said cheques were bound to bounce for lack of sufficient funds. The complainant sent separate legal notices, both dated 14.2.2007 in respect of the said two cheques demanding payment. The accused received the said notices and sent a reply.

4. In the reply, the accused took the plea that he was not liable to pay any amount to the complainant. The accused alleged that the complainant was doing money lending business and was in the habit of taking blank cheques and then filling the same and claiming huge amounts from the people. As regards the claim of the complainant that the said cheques were issued towards the sale amount of the shop of the accused situated at the New Market, Margao. Goa, the accused stated that the accused did not own any shop in the said market. The accused denied that the complainant had advanced to the accused

Rs. 11,95,200. The accused also called upon the complainant to give the details of the alleged payment of Rs.11,95,200 including the date of alleged payment, the manner of payment, the place where payment was made and the names of the witnesses who were present. The accused also called upon the complainant to give the copies of the said cheques so that the accused could comment on the writing on the same. As regards the first cheque the accused further stated that about four years prior to the date on the cheque, the accused had taken a private loan from the complainant of Rs. 10,000 and at that time the complainant had insisted that the accused should hand over a blank cheque to him as security, and in case the loan was not paid then he would take action but the accused subsequently paid the loan to the complainant and the said amount of the loan was paid through the servant of the accused who was asked to hand over the amount to the complainant and get the cheque back and at that time the complainant had informed the said servant that he was unable to trace the said cheque and avoided to return the same, but the accused did not realize the dishonest intention of the complainant. As regards the second cheque, the accused stated that in the year 2003 the accused had asked the complainant for a loan of

Rs. 2,00,000 for construction of a house and the complainant had paid to the accused a sum of Rs. 1,80,000 by deducting in advance the interest payable and at that time the complainant had asked to give a blank cheque and accordingly the second cheque was given without any writing and signature was taken of the accused. The accused stated that the said loan of Rs.1,80,000 was paid in cash to the complainant with interest thereon but the complainant did not return the said cheque saying that the said cheque was not signed or filled and was only a piece of paper and the same was misplaced. The accused also stated that the complainant had recently approached the accused with an offer to purchase the flat of the accused but the accused refused to sell the flat and as such the complainant got annoyed and misused the two blank cheques which were with the complainant to pressurize the accused to sell the flat. The accused also stated that the second cheque was not a cheq