ROBERT COSTA FERNANDES Vs. AMERICO JOSEPH FERNANDES

JUDGEMENT

(1.) PETITIONER was complainant in Criminal Case No. 2/n/19901d filed against the respondent. It was the case of the complainant that as the respondent owed to him an amount of Rs. 3,43,319. 00, the respondent issued a cheque for Rs. 3,00,000. 00- dated 12/12/1989 drawn on Bank of India, Margo Branch, in favour of the complainant. When the cheque was presented to the Bank, the same was returned to the complainant with an endorsement Payment stopped by the drawer. In the view of the return of the cheque, according to the complainant, the petitioner committed an offence under Section 138 of the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988.

(2.) IN support of the complaint, complainant was examined and he produced on record the dishonoured cheque. On 1st of March, 1990, the Judicial Magistrate recorded an Order that no offence under section 138 of the Negotiable Instruments Act has been disclosed, but however, on the contrary the offence disclosed is under Section 420 of the Indian Penal Code for the purpose of issuance of process. He accordingly directed the issuance of process under the latter Section. When the process was issued the respondent appeared before the Court and Sought dismissal of the complaint and what is relevant to be seen is that, according to the respondent, no case for attracting the offence under Section 138 of the Negotiable Instruments Act had been made out. I may however, at this stage record that even before the issue of process directed by Order dated 1st of March, 1990, the complainant had moved an application for additional charge under Section 420 of the Indian Penal Code.

(3.) THE matter lingered on for some time and in between there was a change of the Magistrate. The application for dismissal of the complaint at - the behest of the respondent was taken up by the successor Magistrate and by the impugned Order dated 11th of February, 1992, the learned Magistrate discharged the accused of the offence punishable under Section 420 of the Indian Penal Code and set the respondent at liberty.