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TMI Blog2010 (1) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 138 of N.I. Act, 1881 in the Court of J.M.F.C., Mapusa. The complaint indicated that the said cheque was issued towards the part payment of the price of the cashew nuts worth Rs. 93,640/- purchased by the respondent/accused from the appellant/complainant. 3. The learned Trial Court acquitted the respondent/accused on the ground that the appellant/complainant failed to prove that the cheque was issued towards legally enforceable debt. Controversy in the present appeal is also focused on the validity of the finding of the Trial Court on this point. 4. Learned Advocate Mr. V. Menezes for the appellant submitted that to prove the point that the alleged cheque was issued towards legally enforceable debt, the appellant/complainant proprietor of M/s. Matoshri Cashew nuts examined himself and produced in evidence cheque dated 10.10.2007 Exh.25 for an amount of Rs. 41,000/-, Notice of demand dated 22.10.2007 Exh.27 along with A.D. Card, two bills dated 11.11.2006 and 29.11.2006 towards the supply of cashew nuts worth Rs. 93,640/- Exh.28 collectively, 5 cash credit memos Exh.31 in respect of supply of cashew nuts between 8.4.2006 and 8.6.2005. Affidavit in examination-in-ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -due to him in writing from the accused at any point of time, the payment of Rs. 55,000/- admittedly made by the accused to the complainant was in respect of the cheque amount of Rs. 41,000/- and, therefore, no amount was due to the complainant by the accused. The learned Trial Court, however, did not agree with this contention for the reason that the cheque Exh.25 dated 10.10.2007 was issued by the accused on 29.11.2006, and payment of Rs. 55,000/- was made by the accused between 28.4.2007 and 23.07.2007 and there was no business transaction after 29.11.2006. The learned Trial Court further held that the payment of Rs. 55,000/- can be considered towards Rs. 93,640/- and not towards Rs. 41,000/- and, therefore, in absence of any specific statement of the complainant as towards which debt the said amount was adjusted, it can be presumed that the same was adjusted towards Rs. 93,640/- and as such on deduction of Rs. 55,000/- from Rs. 93,640/- the balance debt was Rs. 38,640/- and not Rs. 41,000/-. The learned Trial Court further observed that as the complainant had admitted that he used to take post dated cheques from the accused before supplying him any goods, therefore, there exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business amounting to Rs. 20 Lacs. He further argued that the learned Trial Court has completely ignored the fact that the respondent/accused had not produced anything to suggest that any payment was made towards dues under the cash credit memos Exh.31 collectively in respect of the supply of the cashew nuts worth Rs. 1,65,706/-. Considering the amount due under the cash credit memos Exh.31, he argued, it could be gathered that there existed legally enforceable debt towards discharge of which the cheque Exh.25 was issued. Failure of the respondent/accused to rebut the presumption about the existence of the legally enforceable debt as envisaged under Section 139 of the said Act, he argued, is very much evident with the production of the said bills Exh.31. 9. Relying on the judgments reported in 2007(1) Mh. L.J. 210 Purushottam Maniklal Gandhi v. Manohar Deshmukh; 2008 All M.R. (Cri.)2230 Balaji Agencies Pvt. Ltd. v. Vilas Bagi Package Ltd. and Anr. and unreported judgment in criminal revision application Mrs. Sheela @ Sudam Manjunath Vernekar v. Rayba S. Dessai and another he argued that the proposition that the Appellate Court should be slow in disturbing the finding of a fact i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and, therefore, the finding of the Trial Court based on reasonable and probable view of the evidence should not be disturbed in the appeal. Quoting from the another judgment of the Apex Court reported in 2008 STPL (LE-Crim) 29108 S.C. Krishna Janardhan Bhat v. Dattatray G. Hegde he submitted that the existence of a legally enforceable debt is not a matter of presumption under Section 139 as Section 139 of the N.I. Act merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability and it is not necessary for the accused to step into the witness box for the purpose of rebuttal of such presumption and the accused may discharge this burden on the basis of material already brought on record. He further relied on the judgment of this Bench reported in 2006(2) Bom CR (Cri.) 830 Laxmikant D. Naik Karmali v. Santosh V. Naik to advocate the proposition that when the cheque is for an amount more than due by the accused, Section 138 of the N.I. Act is not attracted. In this connection, he argued that the complainant had come to the Court with a specific case that the cheque in question was issued towards part pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able debt outstanding in the name of the accused at the material time, therefore, becomes evident from the testimony of the complainant, particularly cash credit memos Exh.31,and is not a matter, which arises as a result of presumption under Section 139 of the N.I. Act, 1881. 14. The accused could have unsettled this fact of existence of legally recoverable debt either by examining himself or producing in the evidence the receipts of the payment made towards liquidation of such debt. The accused did not do so as he very well knew that such debt existed at the material time. Logic employed by the learned Trial Court in arriving at the findings in favour of the accused is, therefore, neither reasonable nor probable. 15. Factual basis for proving the existence of legally recoverable dues was not proved in the cases cited on behalf of the respondent/accused. The judgments in the said cases are, therefore, of no avail to the respondent/accused. 16. In view of the aforesaid discussion, the acquittal of the respondent/accused in the present case needs to be reversed. The impugned judgment and order of acquittal passed by the learned J.M.F.C., Mapusa, Goa is set aside. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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