IMPORTANT POINT
Acquittal passed by Trial Court cannot be set aside without any sound and sufficient ground.

Prithviraj K. Chavan, J. —This appeal is directed against the impugned judgment and order of acquittal of respondent no. 2 of the offence punishable under section 138 of the Negotiable Instruments Act dated 21.6.2012 passed by JMFC Bicholim in Criminal Case No.27/0A/138/2005/C.

2. Facts germane for the decision of the appeal, can be summarised as under:-

The parties shall be referred to as “complainant” and the “accused” as per their original status, for the sake of convenience.

The accused approached the complainant to purchase some scrap material. The complainant agreed to sell the scrap material to the accused for a consideration of Rs. 10 lakhs. The accused, therefore, issued two cheques for Rs. 5,00,000/- each bearing Nos. 256787 and 256788 dated 10.12.2004 drawn on ICICI Bank, Panaji Branch, in part discharge of his liability. However, the cheques were dishonoured when presented on 13.12.2004 and returned with remarks “payment stopped by drawer”. The complainant, therefore, issued a legal notice dated 22.12.2004 to the accused. The said notice was replied by the accused on 14.1.2005. Thereafter, the complainant preferred a complaint in the Court of JMFC, Bicholim on 31.1.2005. The learned JMFC, after recording the evidence and after hearing the respective parties, by the impugned judgment and order acquitted the accused and, therefore, the aggrieved complainant has approached this Court.

3. I heard Shri Agni, learned counsel for the complainant and Shri Singbal, learned counsel for the accused.

4. It is the contention of Shri Agni that the learned trial Judge has failed to apply presumption, as provided under section 139 of N.I. Act as well as misread the averments in the complaint and arrived at an erroneous finding to the effect that the complainant had failed to show that business transaction was completed in respect of which the disputed cheques were issued. He submits that the learned Judge failed to appreciate that once the accused admits the issuance of cheques, burden to prove the defence taken in reply to the statutory notice was upon the accused, who had failed to substantiate the same. The learned counsel took me through the evidence of the witnesses.

5. On the other hand, Shri Singbal, learned counsel appearing for the accused, vehemently argued that if two views are possible and there are no grounds for interference in the judgment of acquittal, the Court should not lightly interfere with the judgment of acquittal. According to the learned counsel, there is no existence of contract to purchase the goods. As per Sale of Goods Act, there cannot be any legal liability. He further submits that there is no evidence on record in order to substantiate the fact that 62 tonnes 500 kgs of scraps were loaded in how many trucks and what was the load of each truck transporting the scrap material. He too took me through the evidence of the witnesses of either side and urged for maintaining the impugned judgment and order of acquittal.

6. The complainant claims to be a scrap dealer and Proprietor of M/s Muneera Scarp Traders, who deals in business of scrap materials under licence No.548/01/-2 issued by Bicholim Municipal Council. According to the complainant, the accused approached him for purchase of scrap material worth Rs. 10 lakhs. The complainant agreed to sell the scrap material to the accused. However, the complaint is silent as to day or date when the accused had approached him for purchase of scrap material. There was no written agreement on record with the complainant, except his bare words that there was an Agreement of Sale of scrap material worth Rs. 10 lakhs. There is no whisper in the complaint that goods (scrap) was, in fact, delivered to the accused. The complaint further states that the accused had issued two cheques of Rs. 5 lakhs each, for the said consideration. The complaint is silent as regard to the first cheque for Rs. 5 lakhs as to whether it was honoured or otherwise. The second cheque beari