WILSON FERNANDES Vs. NITIN PANDURANG

JUDGEMENT

(1.) THE appellant/original complainant, being aggrieved by the Judgment passed by the Turd Assistant Sessions Judge, South Goa, Margao, dated 5th May, 2003 in Criminal Appeal No. 28 of 2002, allowing the appeal and acquitting the respondent/accused, for an offence punishable under Section 138 of the Negotiable Instruments Act, has filed the present Appeal.

(2.) THE facts, in brief, as are necessary for the decision of this Appeal, are set out hereunder: The appellant/complainant filed Criminal Case No. 533/n/99/f in the Court of the Judicial Magistrate, First Class, Margao, against the respondent/accused alleging therein that the accused on 4th August 1997 had obtained an amount of Rs. 5,56,000/- from the complainant with a promise to sell a flat of 100 square metres in the building known as Niad at Rawalfond, Navelim, Salcete Goa. The complainant had averred that the accused had promised to deliver possession of the flat within 6 months from the date of receipt of the amount. The complainant has averred that the accused, despite the oral agreement, failed and neglected to deliver the possession of the flat within the said period of 6 months and, on the complainant contacting the accused several times, the accused had promised to deliver the possession of the flat on or before 10th june 1999. The complainant further averred that as the accused failed to deliver the possession of the flat on 10th June 1999, the complainant contacted the accused on 16th June 1999 and the accused expressed his inability to give possession of the flat and issued 6 cheques being cheque No. 991271, dated 16th June 1999, for Rs. 1 lakh; cheque No. 9912472, dated 25th June 1999, for Rs. 50,000/-; cheque No. 9912474, dated 18th July 1999, for Rs. 56,000/-; cheque No. 9912475, dated 22nd August 1999, for Rs. 1. 5 lakhs; cheque No. 9912476, dated 25th September 1999, for Rs. 1. 5 lakhs and cheque No. 9912477, dated 20th October 1999, for Rs. 50,000/ -. The said cheque No. 9912474, dated 18th July 1999, for Rs. 56,000/- was returned unpaid alongwith a memorandum disclosing the remark account closed. The complainant then issued a notice, on 15th November 1999, and the accused, despite receiving the notice on 18th November 1999, did not pay the complainant the value of the cheque. In the said factual backdrop, the com-plainant filed the complaint before the Judicial Magistrate, First Class, Margao.

(3.) THE learned trial Court explained the particulars of the offence to the accused. The particulars of the offence state that the complainant had paid an amount of Rs. 5,56,000/-, the accused had promised to sell a flat of 100 square metres in the building known as Niad and despite his promise had failed to deliver the flat within 6 months. Towards the discharge of his liability, the accused had issued a cheque bearing No. 9912474, dated 18th July 1999, for Rs. 56,000/-, which was returned unpaid on account of account closed. The accused pleaded not guilty and claimed to be tried. The complainant examined himself as P. W. 1, S. M. Bhandare as P. W. 2 and Balkur Arun Sheregar as P. W. 3 The accused examined himself as D. W. 1 and also his wife Sharmila as D. W. 2. The learned trial Court, accepting the case of the complainant, convicted the accused for an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for 2 months and directed the accused to pay compensation of Rs. 1. 12 lakhs to the complainant under Section 357 (3) of the Code of Criminal Procedure or in default to undergo simple imprisonment for 2 months. On an appeal being carried to the Sessions Court by the accused, the learned Turd Assistant Sessions Judge, vide Judgment, dated 5th May 2003, allowed the appeal and acquitted the accused. The complainant, being aggrieved by the acquittal of the accused, has filed the present appeal against acquittal.