G R SHARMA Vs. R K SHARMA

JUDGEMENT

(1.) This application has been moved for special leave to appeal against the judgment and order dated 05.11.2009 passed by the CJM, Panaji acquitting the surviving accused / respondent no.2 Arun @ Neelam - Widow of the deceased accused/ respondent No.1 R. K. Sharma, of the offence punishable under Section 406, 420, IPC, 1860 in Criminal Case No.232/2001/A.

(2.) Learned Advocate N. Sardessai for the appellant /complainant submitted that the Trial Court completely missed the point and proceeded to acquit the accused on the facts not germane to the case. He further submitted that the accusations were also made against the surviving accused in terms as appearing in the complaint. According to him, the complainant had cordial relations over a decade and half with the surviving accused and her deceased husband, then Inspector General of Police, State of Goa; and somewhere in the year 1991, the deceased accused requested the complainant to get the necessary plans approved from the various competent authorities for construction of a bungalow on the plot of land allotted to him in Sainik Co-operative Housing Building Society Ltd, Alto- Porvorim, Bardez, Goa and eventually the complainant could not afford to do much in that context due to his pre-occupation in legal profession; and, therefore, the deceased accused came to Goa and appointed Mr. A. J. Patil as Architect for getting the plans approved and M/s. Koshey Builder Pvt. Ltd. for undertaking the construction of the residential bungalow.

(3.) Learned Advocate Mr. N. Sardessai culled out from the complaint the gist of the complainant's case. The complaint reveals that the accused (both surviving and the deceased accused) expected the complainant to pay to Mr. Koshey, M.D. of M/s. Koshey Builders Pvt. Ltd. the amounts as and when demanded by Mr. Koshey towards part payment of the construction costs and further represented that they were to go on repaying or reimbursing such amounts to the complainant as and when the arrangements were made for the repayment at their end. The complaint further reveals that there were telephonic requests from the accused persons from time to time to make such payments to the Construction Contractor- M/s. Koshey Builders Pvt. Ltd. and in good faith believing that the repayments would be made by the accused persons, total payment of Rs. 5,50,000/- was made over a period of time in the year 2000 to the Construction Contractor. The complaint further reveals that during the said period there was repayment of Rs. 2,20,000/- by the accused persons by way of eight demand drafts. However, the balance amount, the complaint reveals, was not paid by the accused persons, and in the third week of December 2001, there was a pointblank refusal to repay the said balance amount from the accused persons. It is this refusal, learned Advocate N. Sardessai for the appellant argued, clearly revealed the dishonest intention of the accused persons and provided reason to believe that the accused had deceived the complainant by fraudulently and dishonestly inducing him to part with said payments made to the Construction Contractor on behalf of the accused persons. As regards the offence punishable under Section 406 of IPC, learned Advocate Sardessai for the appellant could not point out from the evidence as to how such offence could be made out, reasonably because the essential ingredients of the offence are found missing in the evidence.