1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 36 OF 2007 Shri Ankush Kawlekar H. No.679, St. Cruz, Corte Real Tiswadi, Goa. ... Appellant versus 1. Mohamad Ismail Hajartmia Mulla R/o. 1787/B-1, Journalist Colony, Next to Maharashtra Bank, Behind Sai Service, Porvorim, Goa 403 501. 2. State Through Public Prosecutor. ... Respondents Mr. Arun Bras de Sa, Advocate for the Appellant. Mr. A. D. Bhobe, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 18TH FEBRUARY, 2009. JUDGMENT This is Complainant's appeal and is filed against the acquittal of the Accused under Section 138 of the Negotiable Instruments Act, 1881 by Order 2 dated 12-2-2007 of the learned Assistant Sessions Judge, Panaji. 2. Briefly stated, the case of the Complainant is that the Accused issued a cheque dated 18-10-2004 drawn on Bank of Maharashtra, Porvorim Branch, for an amount of Rs.25,000/- for discharge of his liability but when the said cheque was sent for payment the same was dishonoured for insufficient funds. A legal notice dated 19-3-2005 was sent to the Accused but the same was not complied with. 3. The Complainant examined himself in support of his case but the Accused did not. However, the Accused examined Shri Vikram Prabhudessai/DW1. There is no dispute that the subject cheque was issued by the Accused to the Complainant. There is also no dispute that the amount of the cheque was written in words as Rs.25/- and in figures as Rs.25,000/-. The case of the Accused is that he had given a cheque for Rs.25/-. 4. The learned trial Court referred to cheque written memo at Exh.27 and observed that the subject cheque was returned for insufficient funds in the account of the Accused. The learned trial Court also noted that Shri Vikram Prabhudessai/DW1 had admitted that if there was any discrepancy as far as the words and figures are concerned, the same would have been reflected in the said memorandum. The learned trial Court also noted that the demand notice dated 19-3-2005 claimed an amount of Rs.25,000/- which was duly received by the 3 Accused on 20-2-2005 and in case the contention of the Accused was bonafide the Accused would have certainly replied to the Accused claiming that it was not Rs.25,000/- but Rs.25/- but the Accused remained silent and only in the cross- examination of the Complainant that the Accused had taken up the defence relying on the discrepancy in the amount of the said cheque. The learned trial Court also noted that Shri Prabhudessai/DW1 had not explained as to why the cheque was not dishonoured on account of the said discrepancy or as to why the Bank did not honour the cheque if the cheque amount was Rs.25/- only, although he had stated that the minimum amount required to be maintained in a savings account was Rs.100/- which meant that there was sufficient amount in the account of the Accused to honour the cheque of Rs.25/-. The learned trial Court further observed that there was a presumption under Section 139 of the Act arising in favour of the Complainant that the cheque in question was issued in discharge of liability which presumption was not rebutted by the Accused and therefore proceeded to convict the Accused as aforesaid. 3. However, the learned Assistant Sessions Judge relying on Section 18 of the Act and its interpretation in the case of Jammu and Kashmir Bank Ltd. v. Qazi Taj Din(AIR 1954 J and K 56) has come to the conclusion that the cheque issued was in the sum of Rs.25/- only, as the amount written in words would prevail over the amount written in figures and that has been the stand of the Accused, as well. Learned Counsel on behalf of the Complainant has submitted that the accused cheated the Complainant by issuing the cheque in the manner he 4 did, but, I must hasten to add that the Complainant did not prosecute the Accused for cheating, assuming giving such a cheque would amount to cheating. The Complainant ought to have known that the cheque issued was only for Rs.25/- and in fact ought to have returned it to the Accused to correct the mistake, if any. The learned Assistant Sessions Judge further held that the Complainant had failed to prove, or in other words, that there was no evidence on record to come to the conclusion that the cheque was dishonoured because there was no amount of Rs.25/- in the account of the Complainant. 4. The view held by the learned Assistant Sessions Judge is quite plausible view and being so there is no scope for interference in the finding arrived at by the learned Assistant Sessions Judge. 5. Consequently, the appeal deserves to be dismissed and is hereby dismissed. N. A. BRITTO, J. RD