BRAHMANAND MAMLEKAR Vs. KISHOR SURYAKANT BORKAR

JUDGEMENT

(1.) By this appeal the appellant impugns the judgment and order dtd. 12/10/2016 passed by the Additional Sessions Judge, Panaji sitting at Ponda Goa, by which the Appellate Court quashed and set aside the Judgment and Order dtd. 26/11/2014 read with 15/12/2014 passed by the Judicial Magistrate First Class 'A' Court Ponda. The Trial Court had convicted the Respondent No.1 for offence punishable under Sec. 138 of the Negotiable Instruments Act and sentenced the respondent No.1 to undergo imprisonment of 6 months and to pay fine of Rs.1.5 lakhs in addition to the cheque amount of Rs.4.00.00,00,000.00 and in default to undergo simple imprisonment of 3 months.

(2.) Factual matrix can be summarised as follows: The respondent No.1 herein had borrowed an amount of Rs.4.00.00,00,000.00 from the appellant and in discharge of repayment of the said legal debt the respondent No.1 had issued a cheque bearing No.106953 dtd. 20/6/2006 for Rs.4.00.00,00,000.00 drawn on HDFC Bank, Ponda Branch in favour of the appellant. When the cheque was presented by the appellant before his bankers, namely Bicholim Urban Co-operative Bank Ltd., Ponda branch it returned unpaid with the remark "Account closed'. The appellant, therefore, issued a registered AD notice dtd. 23/6/2006 to the respondent No.1 informing him that the cheque issued by him has been dishonored and called upon him to pay the cheque amount within 15 days. Though the respondent No.1 received the notice, he failed to reply and pay the amount and, as such, the appellant filed complaint under Sec. 138 of the Negotiable Instruments Act.

(3.) Process under sec. 138 of N.I. Act was issued to the respondent No.1. As the respondent No.1 pleaded not guilty, was ordered to face trial. The appellant to prove his case examined himself as PW1 who placed on record the cheque dtd. 20/06/2006, cheque return memo, forwarding letter and legal notice and on the strength of incriminating evidence found in his deposition, 313 statement was explained to the respondent No.1, who denied the allegations.