JOSEPH IVAN D SOUZA Vs. NANCY D SOUZA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant.

(2.) THE appellant was the complainant before the Court below alleging an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act', for brevity). The appellant is said to have lent a sum of Rs.1,22,000/ - in the year 1998 to the respondent herein. It is further claimed that the respondent in repayment of the said loan amount had issued two cheques, one cheque for Rs.50,000/ - and another cheque for Rs.72,000/ -. The appellant having deposited said cheques for encashment, it transpired that the cheque issued for Rs.50,000/ - was encashed and a cheque issued for Rs.72,000/ - had been dishonoured. The appellant therefore brought it to the notice of the respondent and on his failure to make good the payment, the complaint was filed. However, it was the respondent's defence that it was true that he had borrowed a sum of Rs.1,22,0000/ - and he has sought to repay the same by issuing two cheques, one for Rs.50,000/ - and another for Rs.72,000/ -. It was further true that for lack of sufficient funds, the cheque for Rs.72,000/ - so issued was dishonoured. Therefore, when it was brought to the respondent's attention, he has immediately issued another cheque for Rs.50,000/ - which was duly encashed. Insofar as the remaining amount of Rs.22,000/ - is concerned, a demand draft was obtained and a copy of the same was enclosed to the reply notice and the respondent called upon the appellant to collect the remaining amount covered under the demand draft. The appellant however did not choose to receive the amount but has filed a complaint instead, suppressing the factum of the offer made by the respondent and has sought to contend that there was only one payment of Rs.50,000/ - and brought the complaint on the basis of the cheque which was dishonoured in a sum of Rs.72,000/ -. While suppressing the fact that there was a third cheque issued by the respondent for Rs.50,000/ -, which was duly encashed by the appellant.

(3.) ON the basis of the above rival contentions, the trial Court having gone through the material on record has held that the respondent had sufficiently rebutted the presumption in favour of the complainant arising under Section 139 of the N.I. Act and accordingly has dismissed the complaint. It is that order which is challenged before this Court.