Advocates:
['SHRI ARUN BRAS DE SA', 'S S KANTAK', 'R', '', 'SHRI SUBODH S KANTAKR']

IN THE HIGH COURT OF BOMBAY AT GOA.

CRIMINAL APPEAL NO. 44 OF 2003.

Mr. Floyd Coutinho,

r/o 1G, Grass Villa,

H. No. 100,

Socrecotto, Demani,

Cuncolim.

... Appellant.

Versus

1. Mrs. Beatrica Dias,

Flat No. 3,

Miguelina Apartments,

Murida, Agalli,

Fatorda.

2. State.

... Respondents.

Mr. Arun Bras de Sa, Advocate for the Appellant.

Mr. S.S. Kantak, Advocate for the Respondent No. 1.

Mr. S.N. Sardessai, Public Prosecutor for the Respondent

No. 2/State.

Coram : P.V. HARDAS, J.

Date : 23rd March 2004.

ORAL JUDGMENT.

The complainant, being aggrieved, by the

Judgment, passed by the Judicial Magistrate, First

Class, Margao, dated 31st May 2003 in Criminal Case No.

188/OA/NI/2002/I, acquitting the respondent no.

1/accused for an offence punishable under Section 138 of

the Negotiable Instruments Act, has filed the present

appeal.

2. The facts, in brief, as are necessary for the

decision of this appeal are set out hereunder:-

- 2 -

The appellant/complainant filed the aforesaid

complaint case before the Judicial Magistrate, First

Class, at Margao, alleging therein that the respondent

no. 1/accused had requested the complainant for a loan

of Rs. 1,65,000/-. The complainant, in view of the

good relations and in view of the urgent need of the

accused, advanced a hand loan without interest of Rs.

1,65,000/-. The accused towards part re-payment of the

loan issued cheque bearing No. 768312, dated 6th

February 2002, drawn on the Bank of India, Margao

Branch, for Rs. 1,02,400/-. On presentation of the

said cheque by the complainant, the cheque was returned

unpaid on account of insufficient funds. Despite

receipt of the notice, dated 19th February 2002, the

accused failed to make the payment and, therefore, the

complaint under Section 138 of the Negotiable

Instruments Act. The learned trial Magistrate, after

recording the verification statement, issued process

against the accused.

3. The substance of the accusation was explained

to the accused vide Exhibit 7. The accused pleaded not

guilty and claimed to be tried. The complainant in

support of his case examined 3 witnesses while the

accused examined herself as D.W.1. The learned trial

Magistrate, for the reasons set out in the Judgment,

acquitted the respondent no. 1/accused and, hence, this

- 3 -

appeal, at the behest of the original complainant,

assailing the Judgment of acquittal.

4. Mr. Arun Bras De Sa, the learned counsel

appearing for the appellant, has urged that the learned

trial Court has erred in law in not raising the

presumption under Section 139 of the Negotiable

Instruments Act against the accused. It is urged by the

learned counsel for the appellant that once the

presumption is drawn, it is for the accused to rebut the

said presumption by leading evidence, which is reliable

and cogent. The learned counsel for the appellant has

further urged that the explanation of the accused, which

is wholly inconsistent with the case made out in the

cross-examination, is not sufficient for rebutting the

presumption.

5. Mr. Kantak, the learned counsel appearing on

behalf of the respondent no. 1/accused, has