SHET AND CO. REP. BY ITS PROPRIETOR G.R. SHET S/O. K.R.K. SHET Vs. CORPOPATION TILES WORKS, RONALD ROCHE S/O. A.J.P. ROCHE, MANAGING PARTNER, CORPORATION TILES WORKS AND CRACY MARIA ROCHE, PARTNER, CORPORATION TILES WORKS

JUDGEMENT

(1.) THIS appeal filed by the appellant -complainant under Section 378(4) of Cr.P.C., to set aside the judgment and order of acquittal passed by the 2nd Addl. Sessions Judge, Mangalore, in Crl. A. No. 132/04 dated 21.12.2004 and to confirm the judgment and order of conviction and sentence passed by the JMFC (IV) Court, Mangalore in C.C. No. 229/01 dated 8.4.2004.

(2.) THE case of the appellant is that, he is carrying on the business of money lending by obtaining necessary money tending license from the concerned authorities. The Respondent No. 1 is a partnership firm and Respondents 2 and 3 are the partners. Respondents 2 and 3 are responsible for the affairs and conduct of the business of the R1 -firm. For meeting the financial needs of the firm, i.e., Respondent No. 1, Respondents 2 and 3 along with one K. Prakash Basari had borrowed in all Rs. 4,10,000/ - by executing on demand promissory note, dated 12.3.99 jointly agreeing and undertaking to repay the same together with interest at 23%. Towards part payment of the amount due to the appellant, Respondent -2 as a managing partner and representing the other respondents, issued cheque Ex.P2 bearing No. 79135 for 2,85,000/ - dated 23.08.01 drawn on Syndicate Bank, Hampanakatta, Mangalore in favour of the appellant assuring that the said cheque will be honoured when presented for encashment, therefore he accepted the said cheque in good faith under bonafide belief. But when it was presented for encashment, through the appellant's banker, namely the Indian Overseas Bank, Hamapanakatta, Mangalore, it came to be dishonoured with endorsement Ex.P -3 dated 24.08.2001 as Insufficient funds'. Therefore the appellant herein got issued demand notice - Ex.P -4 through his Counsel on 27.08.2001 to all the respondents, though notice issued to R -2 and 3 was received by them on 30.08.2001, they neither repaid the amount nor send only reply. Notice sent to R1 -Firm returned unserved with an endorsement 'intimation delivered - not claimed'. Therefore, a private complaint came to be filed before the JMPC (IV Court), Mangalore, under Section 200 Cr.P.C.

(3.) AFTER considering the arguments as well as the oral and documentary evidence placed on record by the rival parties, the trial Court convicted the respondents 1 to 3 for an offence punishable under Section 138 of the N.I. Act. and respondents 2 and 3 were sentenced to undergo S.I. for 3 months and to pay compensation of Rs. 3,20,000/ - to the appellant within two months from the date of judgment Feeling aggrieved by the said judgment and order of conviction, the respondents 1 to 3 preferred an appeal Crl.A. 132/04 before the 2nd Addl. Sessions Judge, D.K., Mangalore, under Section 374(2) of Cr.P.C. On re -appreciation of the evidence, the learned Addl. Sessions Judge, reversed the judgment of order of conviction and sentence and complaint filed by the appellant was dismissed. Therefore, the appellant being the complainant has come up with this appeal.