KRISHNA P.MORAJKAR Vs. JOE FERRAO

JUDGEMENT

(1.) This appeal questions appellate judgment of the learned Additional Sessions Judge, Mapusa whereby the learned Additional Sessions Judge set aside judgment of conviction of the respondent for offence punishable under Section 138 of the Negotiable Instruments Act and sentence of paying compensation quantified at Rs.4,00,000/- or in default to suffer imprisonment for one year imposed upon the respondent by the learned JMFC, 'E' Court, Mapusa Goa on the conclusion of trial of Criminal Case no.OA/NIA/759/P/O6/E before the learned Magistrate.

(2.) The facts which are material for deciding this appeal are as under:

(3.) After respondent appeared, substance of acquisition was explained to the respondent and since he pleaded not guilty, he was put on trial at which the appellant examined himself in order to prove his case. The respondent was examined under Section 313 of the Criminal Procedure Code and sought to tender evidence in defence. He examined himself as DW1 and one Lawrence Fernandes as DW2. The defence of the respondent was that the appellant came to his house on 31/03/2006 at about 9.30 a.m. with unknown persons and demanded "hafta", protection money of Rs.3 lacs possibly alleging that the respondent had sold his premises and, therefore, respondent had huge amount with him. On respondent telling the appellant that he had no money, the appellant saw the cheque book lying on the table and forced the respondent to write the cheques in question. The respondent stated that there was no question of respondent being in need of money to renovate his business premises by name 'Sunrise Bar and Restaurant', since he had already sold the premises 'Sunrise Bar and Restaurant' on 11/08/2005 and had placed DW2 Lawrence Fernandes in its possession. In fact, a shop by name M/s. Elisha Enterprises dealing with consumer goods had been inaugurated in the premises on 11/10/2005. Further, there was no question of the appellant being in a position to advance any amount to the respondent in the shop on 31/03/2006. After considering this evidence tendered before the learned Magistrate, the learned Magistrate held that the appellant had proved the charge and convicted the respondent as aforementioned. Aggrieved thereby, the respondent preferred an appeal before the Court of Sessions.