Judgment : Heard Mr. Pangam, learned Counsel for the appellant and Mr. Lobo, learned Counsel, appointed under Legal Aid Scheme, on behalf of the respondent no.1. 2. The appellant is the complainant of Criminal Case No. 393/NIA/2008/B and this appeal has been preferred against the Judgment and Order dated 29/10/2009 passed by the learned Judicial Magistrate First Class at Ponda ( J.M.F.C., for short) in the said Criminal Case. 3. The complainant had filed the said case against the accused, who is the respondent no. 1 in this appeal, for offence punishable under Section 138 of the Negotiable Instruments Act, (N.I. Act, for short). The case of the complainant is as follows:- It is a Credit Co-operative Society registered under Maharashtra Co-operative Societies Act as made applicable to the State of Goa and having its head office at Mardol, Ponda, Goa and its branches in various parts of Goa including the one at Corlim, Goa. The complainant is engaged in financial business of accepting deposits including fixed deposits and advancing loans to its customers. The accused had taken a loan from it under loan account no. MTSCL/ 07 in the sum of Rs. 85,000/-and had agreed to repay the same along with interest in installments under the terms and conditions stipulated in the said loan agreement. The accused committed defaults in payments of the said loan installments and huge amount is overdue. After much follow-up and repeated requests, the accused, towards the part payment of her legal liability towards the complainant, had issued a cheque bearing no. 771604 dated 31/01/2008 for the amount of Rs.1,58,139/-drawn on Bank of India, Taliegao branch. The said cheque, when presented to the banker of the complainant, was returned unpaid on 4/2/2008 for the reason “insufficient funds”. The complainant through its advocate issued a legal notice to the accused on 25/5/2008 calling upon her to pay the cheque amount within 15 days from the date of receipt of the notice. The accused received the said notice on 26/02/2008 but failed or neglected to make the payment of the cheque amount within the stipulated period. Hence the complaint. 4. The complainant examined Shri Babani Gaude, Recovery in-charge and authorized officer of the complainant as PW1. The accused was examined under Section 313 of the Code of Criminal Procedure. He did not examine any witness in his defence. 5. Hence the complaint. 4. The complainant examined Shri Babani Gaude, Recovery in-charge and authorized officer of the complainant as PW1. The accused was examined under Section 313 of the Code of Criminal Procedure. He did not examine any witness in his defence. 5. The learned J.M.F.C. held that the Ponda Court had jurisdiction to entertain and try the said case and that the complaint was filed by a duly authorized officer of the complainant and PW1 has also been duly authorized to depose in the matter. She also held that the complainant is the payee of the said cheque. However insofar as the legally enforceable debt is concerned, the learned J.M.F.C. found that as per the complaint as well as the demand notice the cheque was issued towards the part payment of legal liability but as per the statement of account, the entire liability of the accused as on 31st December, 2007 has been shown as Rs.1,58,139/-which is equivalent to the cheque amount. The learned J.M.F.C. found that PW1 could not deny a specific suggestion put to him that if the accused has committed default, then as per the agreement she is liable to pay an amount of Rs.1,44,000/-as on 31/01/2008. The learned J.M.F.C. further found that there are various entries in the statement of account at Exhibit 27 about the amounts to which the complainant is not entitled under the agreement of loan and according to the learned J.M.F.C., if the complainant was entitled to the same based on some other documents, it was for the complainant to produce those documents. Learned J.M.F.C. held that the complainant has failed to prove that the cheque was issued towards a legally enforceable liability and the accused has brought sufficient evidence on record to prove her defence that the cheque was taken as security. Hence, the accused came to be acquitted. The complainant is aggrieved by the impugned Judgment and Order. 6. Assailing the impugned judgment and order, the learned Counsel appearing on behalf of the complainant submitted that admittedly the loan of Rs. 85,000/-was availed by the accused from the complainant and the rate of interest was 18% per annum. Hence, the accused came to be acquitted. The complainant is aggrieved by the impugned Judgment and Order. 6. Assailing the impugned judgment and order, the learned Counsel appearing on behalf of the complainant submitted that admittedly the loan of Rs. 85,000/-was availed by the accused from the complainant and the rate of interest was 18% per annum. He further submitted that though in the complaint and the statutory notice sent to the accused it was stated that the cheque is towards part payment of dues, however the records duly prove that the amount due as on the date of cheque was Rs. 1,58,139/-and the cheque being for the same amount, it means that the cheque amount did not exceed the debt or liability. According to the learned Counsel, the mistake of the complainant in calling the same as part payment is not at all relevant. He next submitted that there is suggestion put by the accused himself in the cross-examination of PW1 that the amount due was Rs. 1,58,139/-which has been admitted by PW.1. He therefore contended that it was for the accused to establish that the debt was less than the cheque amount, as on the date of the cheque. He pointed out that as per the agreement of loan the accused was bound by the rules and bye-laws of the complainant society and insofar as the amounts towards arbitration and insurance premium, shown in the statement of account, are concerned, PW1 has stated that the bylaws provided for such charges. He submitted that the said amounts towards arbitration fees, insurance premium, notice charges etc. are considerations due by the accused towards the complainant. According to the learned Counsel for the complainant, since the execution of the cheque is duly proved, the presumptions under Section 139 and 118(a) of the N.I. Act arise, which presumptions have not been rebutted by the accused. He therefore urged that the judgment of acquittal of the accused is perverse and contrary to the evidence on record and the same is liable to be quashed and set aside. He submitted that the appeal be allowed and the accused convicted of the offence punishable under Section 138 of the N.I. Act, accordingly. 7. He therefore urged that the judgment of acquittal of the accused is perverse and contrary to the evidence on record and the same is liable to be quashed and set aside. He submitted that the appeal be allowed and the accused convicted of the offence punishable under Section 138 of the N.I. Act, accordingly. 7. Per contra, supporting the impugned judgment and order, the learned counsel, appearing on behalf of the accused, submitted that the impugned judgment being of acquittal, this Court should not interfere with the same, even if another view is possible, since the view taken by the learned J.M.F.C. Is probable. He submitted that the complaint is filed by one Suresh Gaude but there is no resolution of the complainant society authorizing him to file complaint, produced on record. He submitted that the statement of account was neither annexed to the statutory notice nor was produced along with the complaint but was produced in the cross-examination of PW.1, which is therefore not beyond suspicion. The learned Counsel further submitted that as per the agreement the loan was to be repaid on or before 31/01/2007, but the complainant did not take any steps for recovery of the loan and sent the notice for the first time in the year 2008. He submitted that there is nothing on record to show as to how the complainant came in possession of the cheque from July, 2007 to the date of that cheque. The learned Counsel stated that blank cheques were taken by the complainant at the time of sanctioning of the loan. He showed from the statement of account that various amounts towards arbitration fees (ABN), insurance premium, etc., have been included in the same about which there is no mention in the agreement of loan. According to the learned Counsel for the accused, a careful reading of the impugned judgment reveals that it is not proved beyond doubt that the cheque was towards legally enforceable debt. He submitted that there is no perversity in the judgment and hence the appeal is liable to be dismissed. 8. I have gone through the record and proceedings and considered the submissions made by the learned Counsel for both the parties. 9. The complaint is filed by the then Senior Manager of the complainant namely Mr. Suresh Gaude and the oral/documentary evidence is adduced by the Recovery Incharge of the complainant namely Mr. 8. I have gone through the record and proceedings and considered the submissions made by the learned Counsel for both the parties. 9. The complaint is filed by the then Senior Manager of the complainant namely Mr. Suresh Gaude and the oral/documentary evidence is adduced by the Recovery Incharge of the complainant namely Mr. Babani Gaude. The resolutions dated 27/6/07 and 11/8/08, of the Board of Directors of the complainant, respectively authorizing Mr. Suresh Gaude, the Senior Manager of Corlim branch to file complaint, etc., on behalf of the complainant and Mr. Babani Gaude, Recovery Incharge to file, continue with, verify, etc., in all matters Civil or Criminal and to depose on oath, etc., on behalf of the complainant, are at Exhibit 21-colly. There is no dispute that the cheque(Exhibit 22), which is subject matter of this case, is executed by the accused in favour of the complainant and hence the complainant is the payee. Indisputably, the same was presented within its validity period and was dishonoured with remark “Insufficient funds” and statutory notice was issued to the accused within prescribed time limit and received by her, but not complied with and the complaint is filed within the prescribed time limit. It is also not disputed that the learned J.M.F.C. had jurisdiction to entertain and try the said case. 10. The only point for determination in the present case is whether there was legally enforceable debt of the accused towards the complainant, of the amount as mentioned in the cheque, as on the date of the said cheque. 11. Under Section 118(a) of the N.I. Act, there is a presumption that until the contrary is proved, every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. Section 139 of the N.I. Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. In the case of “Krishna Janardhan Bhat Vs. Section 139 of the N.I. Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. In the case of “Krishna Janardhan Bhat Vs. Dattatraya G. Hegde” [ (2008) 4 SCC 54 ] it was held that presumption under Section 139 of the N.I. Act does not include the existence of a legally enforceable debt or liability and that Section 139 merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. However, subsequently in the case of “RangappaVs. Mohan” [ AIR 2010 SC 1898 ], the Three-Judges Bench of the Apex Court held that the presumption mandated by Section 139 of the N.I. Act includes the existence of legally enforceable debt or liability and to that extent, the impugned observations in the case of “Krishna Janardhan Bhat” (supra) may not be correct. Thus, the presumption under Section 139 of the N.I. Act, in favour of the holder of the cheque, is that a legally enforceable debt or liability exists and also that the said cheque has been issued for the discharge of the said debt or liability. 12. In the case of “Bharat Barrel & Drum Manufacturing Company V/s Amin Chand Pyarelal”, [ (1999) 3 SCC 35 , it has been held as under:- “Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the defendant is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist.” 13. There can be no dispute that the debt or liability referred to under Section 138 of the N.I. Act means the debt or liability which existed on the date on which the cheque was issued. It is also well settled that if a cheque is for an amount more than that due by the accused, Section 138 of the N.I. Act is not attracted. Admittedly, the accused had availed the loan of Rs. 85,000/-and as on the date of the cheque(Exhibit 22), the accused was owing money to the complainant towards the repayment of the said loan. The execution of the cheque by the accused is not denied. The accused at no time disputed the giving of the said cheque to the complainant. Therefore, the presumption is that it is supported by consideration and that there is legally enforceable debt or liability, in the sum of Rs. The execution of the cheque by the accused is not denied. The accused at no time disputed the giving of the said cheque to the complainant. Therefore, the presumption is that it is supported by consideration and that there is legally enforceable debt or liability, in the sum of Rs. 1,58,139/-and also that the said cheque has been issued for the discharge of the said debt or liability, which presumption had to be rebutted by the accused. The question is whether the said cheque was for an amount more than that due by the accused, on the date of that cheque. It is for the accused, in the first instance, to prove the non-existence of the said consideration as on the date of cheque by raising appropriate defence. Only if the accused discharges the said initial onus of proof showing that extent of consideration is improper or illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact. It is true that in the present case the complainant has alleged in the complaint that the cheque was issued towards part payment of legal liability of the accused towards the complainant. It is true that the same thing has been repeated in the statutory notice issued to the accused and which is part of Exhibit 24(colly). It is also true that subsequently in the evidence it has come on record that the said cheque is actually for the total outstanding amount as on the date of that cheque. What is to be kept in mind is that the complainant has not enlarged the scope of the liability stated in the cheque. In the complaint as well as in the statutory notice under Section 138 of the N.I. Act it has been stated that the cheque was towards part payment of legal liability. During the course of evidence PW1 has brought on record that the said liability in the sum of Rs. 1,58,139/-was the total liability as on the date of that cheque. In the case of “M.M.T.C. Ltd. and another Vs. Medchl Chemicals and Pharma (P) Ltd and anr.” reported in [ (2002) 1 SCC 234 ], the Apex Court has held that there is no requirement that the complainant must specifically allege in the complaint that there is subsisting liability. 1,58,139/-was the total liability as on the date of that cheque. In the case of “M.M.T.C. Ltd. and another Vs. Medchl Chemicals and Pharma (P) Ltd and anr.” reported in [ (2002) 1 SCC 234 ], the Apex Court has held that there is no requirement that the complainant must specifically allege in the complaint that there is subsisting liability. Therefore, in my view merely because the averment in the complaint is to the effect that the said cheque has been issued towards part payment of the liability, the same does not absolve the accused of his liability. 14. PW.1 has stated in his affidavit-in-evidence(Exhibit 19) all the facts as narrated in the complaint, inter alia, including that the accused had issued the cheque bearing no. 771604 dated 30/1/2008 in the sum of Rs. 1,58,139/-drawn on Bank of India, Taliegao Branch, towards the part payment of her legal liability towards the complainant. The following statements of PW.1, which have come on record in his cross-examination, reveal that certain facts are duly proved by way of admissions to the suggestions put by the accused. The said statements are:- “The cheque amount is the total overdue amount of the accused. I can produce the statement of loan account of the accused. I am producing the statement of account of loan and marked Exbt 27 PW1 Cross.” “It is true that the cheque amount is the total outstanding amount and if the cheque amount was realized, the entire loan would have been paid off. It is true that the overdue amount is the amount which is due towards the amount of installments payable on a particular day and the outstanding amount is the total amount payable including the principle and the interest on a particular date. The cheque was given on the date mentioned in the cheque.” “I say that as on the date of the cheque the total outstanding of the acc. was Rs. 1,58,139/-and if the cheque was realized, the loan account would have been closed, however, as the cheque was not realized, the quarterly interest has to be calculated.” “It is not true to suggest that my preceding statement is false. The quarterly interest is calculated as per clause 5 of the agreement of loan. The interest for one month of January, 2008 was not applied when we requested the acc. to pay the loan amount. The quarterly interest is calculated as per clause 5 of the agreement of loan. The interest for one month of January, 2008 was not applied when we requested the acc. to pay the loan amount. Our Manager informed the amount to the acc. and accordingly, the cheque was filled.” 15. Bare suggestions put to PW.1 that two blank cheques were obtained from the accused as security and that the complainant was not entitled to deposit the same without intimation to the accused, as the same were obtained as security, at the time of sanctioning of the loan, which suggestions have been denied by PW.1, are not at all sufficient to rebut the presumption arising out of section 139 of the N.I. Act. The accused is herself the borrower of loan and has not even explained as to how the said alleged security by way of cheque, was to operate. Besides, It is now well settled that even if the cheque has been issued as a security, complaint lies under Section 138 of the N.I. Act. (See “I.C.D.S. Ltd. Vs. Beena Shabeer and Anr.”- AIR 2002 S.C. 3014 ) 16. From the above undisputed facts which have come on record, in my view, the admitted fact is that as on the date of cheque the total outstanding of the accused towards the loan account was Rs. 1,58,139/-. No doubt, a suggestion has been put to PW1 that if the accused had committed default in paying the loan amount then as per the agreement she would be liable to pay outstanding amount of Rs. 1,44,000/-as on 31/01/2008. PW 1 could not say anything to this suggestion. However, it is well settled that mere suggestion is not sufficient to rebut the presumption arising out of Section 139 of the N.I. Act. In the cross-examination of PW.1, he was asked whether he can produce the statement of the loan account of the accused. PW.1 answered in the affirmative and at the same time produced the same which was marked as Exhibit 27/PW.1-Cross. PW.1 did not seek for time to produce the same. It is further seen that PW1 has admitted that as per the agreement they cannot charge the ABN fees that is arbitration fees, as shown in the statement of accounts dated 21/04/2005 and 03/11/2005. PW.1 did not seek for time to produce the same. It is further seen that PW1 has admitted that as per the agreement they cannot charge the ABN fees that is arbitration fees, as shown in the statement of accounts dated 21/04/2005 and 03/11/2005. He has also stated that in the agreement it is not mentioned that they can charge insurance premium in the loan account as shown in the statement under entry dated 31/07/2008. However, what is pertinent to note that PW1 has added that the byelaws of the complainant provide for such charges for payment. The said agreement of loan is at Exhibit 25 Colly and in clause 8 thereof, the accused has agreed to be bound by the rules and byelaws of the complainant society. In the cross-examination of PW1, there is no denial of the fact that the byelaws of the complainant society provide for charges towards the arbitration fees and insurance premium, etc. The said statement of account which is at Exhibit 27 includes arbitration charges, insurance premium and also notice charges and all these are considerations in respect of which there is presumption under Section 118(a) of the N.I. Act. The said statement of account shows that as on 31/12/2007, the balance amount to be recovered from the accused was Rs. 1,58,139/-. The cheque at Exhibit 22 is dated 31/1/2008 and is for the said amount of Rs. 1,58,139. The notice dated 25/2/2008 at Exhibit 24 colly calling upon the accused to pay the cheque amount of Rs. 1,58,139, within 15 days from the date of receipt of the notice is a statutory notice, given to the accused under Section 138(b) of the N.I. Act. Though the accused received the same, she did not bother to reply, thereby denying the debt or liability. In her statement under Section 313 of the Code Of Criminal Procedure, the accused has denied everything including availing of the loan, issuance of cheque, receipt of the statutory notice, etc. She has not explained any of the incriminating circumstances appearing against her, in the evidence. In her statement under Section 313 of the Code Of Criminal Procedure, the accused has denied everything including availing of the loan, issuance of cheque, receipt of the statutory notice, etc. She has not explained any of the incriminating circumstances appearing against her, in the evidence. In view of the suggestion put to PW.1 and admitted by him that the cheque amount is total outstanding amount and that if the cheque amount was realized, the entire loan would have been paid off, it can be said that the accused has failed to rebut the presumption arising out of Section 139 of the N.I. Act. The complainant has proved its case beyond reasonable doubt. 17. There is no doubt that if from the evidence on record, two views are possible and the view adopted by the trial Court is probable, there is no scope for interference by the High Court against that order even if the High Court is inclined to accept the other view. I am aware of the principles to be adopted in the cases of acquittal. In the present case, in my considered view, the learned J.M.F.C. has erred in holding that there was no legally enforceable debt. The view adopted by the learned J.M.F.C. is not a possible view and in fact is a perverse view due to which interference is warranted. The impugned judgment and order of acquittal is not in accordance with the settled principles of law. The accused is liable to be convicted of the offence punishable under Section 138 of the N.I. Act. 18. Considering the fact that the accused is a woman and that the complainant is credit co-operative society which would be more interested in the recovery of the amount due, I am of the view that the sentence, as under, would be just and reasonable. 19. In the result the appeal is allowed. (a) The impugned judgment and order is quashed and set aside; (b) The accused is held guilty of the offence punishable under Section 138 of the N.I. Act and is convicted and sentenced to undergo imprisonment till the arising of the Court and to pay compensation of Rs. 3,16,278/-to the complainant, in default to undergo simple imprisonment for a period of one year. (c) The accused shall surrender before the learned J.M.F.C. within 30 days from today to undergo the sentence.