1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 83 OF 2006 Shri Mukund Zingdo Naik, major of age, married, Service, r/o. Bagawada, Curchorem, Goa. .... Appellant V/s 1. Shri Durganand Dinkar Parab, Prop. M/s. Durga Cement Moulding Works, Marutigad, Kakoda, Goa. 2. STATE, through the Public Prosecutor, High Court of Bombay at Goa. .... Respondents Mr. D. Pangam, Advocate for the Appellant. Mr. R.G. Ramani, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. Date : 24 th FEBRUARY, 2009 ORAL JUDGMENT : Heard learned Counsel on behalf of the parties. 2. This is a Complainant's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881. 3. The Complainant had lent to the accused a sum of Rs. 1.10 lacs against a pronote and a blank signed cheque on 5/07/2001. This cheque was completed by the Complainant, and according to him, on 14/02/2003 after consultation with the accused. When the said cheque duly completed was 2 presented for payment it was dishonoured on the ground that the funds were insufficient in the account of the accused. A legal notice dated 17/02/2003 followed, which was returned unclaimed. The complaint was filed and in support of the complaint, the Complainant examined himself and so did the accused. The accused also examined his brother to show that part of the amount was adjusted by supplying cement to a party indicated by the Complainant. In other words, as per the accused a sum of Rs. 75,173/- was paid by the said supply of cement including some cash payments which were made to the Complainant. 4. The learned trial Court after considering the evidence produced on behalf of the parties observed that to prove the claim of the accused that part of the amount was paid to the Complainant, the passbooks were produced at Exhibit 27 Colly and the highlighted portions on the said passbooks showed that there was the name of the Complainant figuring in the said passbooks of the accused. The learned trial Court also observed that the Complainant in his cross-examination had admitted that only Rs. 8,000/- were paid by the accused against the claim of the accused that he had paid the sum of Rs. 75,173/-. A part of the findings of the learned trial Court, once it was admitted by the Complainant that he had received a sum of Rs. 8,000/- from the accused, the said admission showed that there was no liability to be met by the accused to the extent of Rs. 1.10 lacs. Moreover, since the cheque was 3 given by the accused in blank, on 14/02/2003 the Complainant could not have had even the implied authority to complete the cheque in the sum of Rs. 1.10 lacs in view of the said admission by the Complainant that he had received Rs. 8,000/- from the accused. 5. This Court in Laxmikant D. Naik Karmali V/s. Santosh Naik (2006 (2) Bom.CR 830) has held that when a cheque is issued for an amount more than due by the accused, Section 138 of the Act is not attracted. 6. In other words, the accused had sufficiently rebutted the presumption available to the Complainant that the subject cheque was issued in payment of debt or liability to the extent of Rs. 1.10 lacs. In this view of the matter, the acquittal of the accused could not be faulted. 7. There is no substance in this appeal. Consequently, the same is hereby dismissed. Considering the facts of the case, the costs of Rs. 5,000/- are to be paid by the Complainant to the accused. N.A. BRITTO, J. NH/-