1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 9 OF 2007 Shri Richard Pinto, Major in age, R/o Aldona, Bardez, Goa. .... Appellant V/s 1. Mr. Francis Fernandes, Major in age,, C/o Sea Breeze Bar N' Restaurant, St. Michael's Vaddo, Dando, Anjuna, Bardez-Goa. 2. STATE, Through P.P. .... Respondents Mr. A.D. Bhobe, Advocate for the Appellant. Mr. N.N. Sardessai, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 17th FEBRUARY, 2009 ORAL JUDGEMENT : This is an appeal filed by the complainant against the acquittal of the accused under Section 138 by judgment/order dated 31/07/2006 of the learned JMFC, Mapusa. 2. Heard learned Counsel on behalf of both parties. 3. The case of the complainant was that the accused had issued a cheque bearing no. 427187 dated 5/07/2004 for Rs. 25,000/-, drawn on Corporation Bank, Chapora Vagator, Goa in discharge of an obligation arising out of 2 liability and when the said cheque was deposited for clearance in the Corporation Bank, Calangute Branch on 5/07/2004, it was returned dishonoured for insufficient funds. A notice was issued dated 16/07/2004 for the first time which was returned by the postal authority with endorsement “Party out of station, return to sender”. It was sent for the second time and it was returned with endorsement “Party refused, return to sender”. The complainant examined himself in support of his case. The accused did not enter in the witness box but produced a copy of the passbook and also examined his mother in his defence. 4. As far as the receipt of the notice is concerned, the trial Court has come to the conclusion that the same was refused by the accused, notwithstanding the version of the mother of the accused, that at no point of time the village postman had approached her with a registered letter. The finding of the learned trial Court on that count on page 9 of the judgment (and page 69 of the paper book) needs to be endorsed. 5. There is no dispute that the complainant and the accused were close friends and used to consume liquor from morning till night. In a cross- examination of a complainant it was suggested to him that the complainant having torn the second cheque, a third cheque was issued to him bearing no. 427189 and the complainant replied stating that he did not remember about 3 the same. It was specifically suggested again to the complainant that Rs. 25,000/- was paid to the complainant by said cheque no. 427189, a suggestion which the complainant denied. Apart from putting the said suggestion, the accused had stated in his statement under Section 313, Cr.P.C. that the amount of Rs. 25,000/- was paid by the accused to the complainant vide cheque no. 427189 on 10/10/2004 and in support of the said statement the complainant had also produced a copy of his passbook which clearly showed that by the said cheque the complainant had received the said sum of Rs. 25,000/- on or about 10/10/2004. 6. Counsel on behalf of the complainant submits that the said amount paid by the accused by the said cheque was towards some other liability. However, that was not the case of the complainant either in the complaint or in his evidence before the Court. Although the learned trial Court might have observed that Section 138 of the Negotiable Instruments Act, 1881 was not attracted because there was no averment in the complaint about the type of the liability, the fact remains that the accused had sufficiently proved by preponderance of probability through the cross-examination of the complainant and later in his statement under Section 313 of the Code, backed by relevant bank records that the accused had already paid the amount borrowed from the complainant. 4 7. In the above view of the matter, the acquittal of the accused under Section 138 of the Negotiable Instruments Act, could not be faulted. 8. There is no merit in this appeal and, accordingly, the same is hereby dismissed with no orders as to costs. N.A. BRITTO, J. NH/-