PRABHAKAR RAUJI SHET Vs. SHRIKANTI M AROLKAR

JUDGEMENT

(1.) THIS is Complainant's appeal and is filed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 by judgment/order dated 8/09/2006 of the learned JMFC, Vasco-da-Gama.

(2.) ADMITTEDLY, the accused is the "rakhi" sister of the Complainant and not only that the Complainant used to regularly take the accused to her work place and bring her back first, when she was working at Chicalim, and thereafter, when she was working at Panaji, as a nurse. The Complainant filed the complaint against the said accused with the allegation that the accused had borrowed from the Complainant a sum of Rs.5 lacs and towards the repayment of the same had issued a cheque No.0666325 dated 3/12/2004 which cheque when presented for payment on 12/04/2005 was returned dishonoured on the ground that the funds were insufficient. The Complainant, therefore, served on the accused a demand notice dated 16/04/2005 which was received by the accused and since the accused failed to comply with the said notice, the Complainant filed the complaint on or about 3/05/2005 and, in support of his case examined himself and one K.K. Mohan, who was the Bank Manager of the bank, where the accused had her account.

(3.) CONTENDING that the accused had issued the cheque to the Complainant towards the liability she had towards the Complainant, the Complainant having lent 2 sums each of Rs.3.4 lacs and Rs.1.6 lacs, it is submitted that there was a presumption in favour of the Complainant that the cheque was issued towards the debt and learned Counsel on behalf of the Complainant has placed reliance on K.N. Beena and Anr. Vs. Muniyappan and Anr. AIR 2001 SC 2895) in which case the Apex Court following the case of Hiten P. Dalal Vs. Bratindranath Banerjee 2001 (6) SCC 16) has observed that one cannot loose sight of Section 118 and 139 of the said Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139, the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability and, therefore, in complaints under Section 138, the Court had to presume that the cheque had been issued for a debt or liability, which presumption was rebutable, but, the burden of proving that the cheque was not issued for a debt or the liability was on the accused.