SANDEHS K DESSAI Vs. DATTARAJ KESHAV PRABHU GAONKAR

JUDGEMENT

(1.) The petitioner No. 1' is the original complainant. He is challenging the order passed by the Addl. Sessions Judge, south Goa, Margao in Criminal Appeal No. 22/2004, whereby the Sessions Judge was pleased to acquit the accused of the offence punishable under Section 138 of the Negotiable instruments Act and has set aside the Order passed by the J. M. F. C. convicting the accused under S. 138 of the said Act.

(2.) The applicant/petitioner had filed a complaint in the Court of J. M. F. C. under s. 138 of the said Act and it was alleged in the said complaint that the accused owed a sum of rs. 39,700/- to him and a cheque for the said amount was issued in respect of the transaction of cement supplied between the applicant and the original accused. When the said cheque was presented in the Bank by the applicant, it was returned with a remark that the funds in the account of the respondent/accused were insufficient. The trial Court convicted the accused on the basis of the evidence. From the Judgment of the trial Court, it can be seen that the trial Court has not considered the examination and cross-examination of the complainant and without appreciating the defence raised by the accused, convicted the accused for the offence punishable under S. 138 of the said Act.

(3.) Against the said Order, the accused preferred appeal before the Sessions judge, South Goa. The Sessions Judge has considered the admission given by the complainant in his cross-examination. The sessions Judge has observed that in the cross-examination the complainant had specifically stated that there was no business transaction between him and the accused and further that he has not stated in the complaint that the cheque was issued in respect of the transaction between him and the accused. The learned sessions Judge further observed that the complainant also admitted in his cross- examination that he had no document to show to the Court about any business transaction of cement between him and the accused. The sessions Court therefore on the basis of this admission, held that the presumption which was raised under S. 139 of the said Act was rebutted by the accused and therefore the complainant had failed to prove that the cheque was issued in discharge of a legally enforceable debt or liability. In my view there is no infirmity in the Order passed by the learned Sessions judge.