MAHESH Vs. KALIDAS KASHINATH

JUDGEMENT

(1.) The appellant, who was the original complainant in Criminal Case No.OA/354/2011/C on the file of the Judicial Magistrate, First Class, 'D' Court, Panaji, is aggrieved by the dismissal of his complaint and acquittal of the respondent no.1 of the offence punishable under Sec. 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act" for short).

(2.) The allegation in the complaint was that the respondent-accused and his wife falsely represented the complainant that they were the absolute owners and possessors of the land bearing Survey No.16/8, admeasuring 2365 sq. mts. of Village Nachinola and induced them to purchase the same. Accordingly, on 4/9/2010, an agreement to purchase the said land was executed and as a part of consideration, an amount of 25,00,000/- was paid to the accused and his wife. Rs. Thereafter, the accused and his wife failed to comply with the terms of the said agreement and also defaulted in making the repayment of the said amount within the agreed period. It is further the case of the complainant that the major part of the said land was in possession of one Mr. Jagdish Patel, who, in fact was running a Saw Mill thereon and accused had also taken money from him by agreeing to sell the same land to him. The complainant thereupon immediately contacted the accused and his wife and warned them that appropriate legal action would be initiated against them in case they do not fulfill their promise of returning the amount along with interest. The accused then requested the complainant to refrain from resorting to any such acts and promised to pay as per the terms of the agreement to the complainant the sum of 32,00,000/- being refund of sum of Rs. Rs.25,00,000.00 with interest accrued thereon and accordingly issued a cheque for 32,00,000/-, in the name of his sole proprietary concern Rs. Zenith Constructions, which is the subject matter of the present case.

(3.) On presentation, the said cheque was returned dishonoured with the remark "funds insufficient". Payment was not made despite demand through statutory legal notice dtd. 15/10/2011, and ultimately the complaint in question was filed on 8/12/2011 before the Trial Court in respect of the disputed Cheque No. 574324 dtd. 3/10/2011 of Rs.32,00,000.00.