LAWS(BOM)-2014-2-187

EDWIN FERNANDES Vs. BHAVANIDAS NAGESH PARKAR

Decided On February 12, 2014
Edwin Fernandes Appellant
V/S
Bhavanidas Nagesh Parkar Respondents

JUDGEMENT

(1.) This appeal is directed against the judgment dated 8/07/2010 passed by the Judicial Magistrate First Class, Mapusa, thereby acquitting the respondent/original accused for the offence punishable under Section 138 of the Negotiable Instruments Act of 1881.

(2.) It is the case of the complainant that the respondent/original accused was his friend and he was in need of money due to illness of his mother. So he made a demand of Rs.1,75,000/- (Rupees one lac seventy five thousand only) for her hospitalisation approximately in the month of June, 2008. The complainant gave amount of Rs.1,00,000/- (Rupees one lac only) in June, 2008 by cash against which the respondent/original accused issued postdated cheque dated 12/07/2008 of Rs.1,00,000/- (Rupees one lac only), drawn on Madgaon Urban Co-operative Bank, Ponda Branch, in favour of the complainant. The said cheque was dishonoured for insufficient funds on 22/08/2008. The complainant, thereafter, issued statutory notice on 19/09/2008 calling upon the accused to make a payment of the said amount within 15 days. The said notice was received on 22/09/2008. However, no payment was made by the respondent/original accused. The complainant, therefore, presented the complaint before the learned Magistrate under Section 138 of the Negotiable Instruments Act. The learned Magistrate issued process and the respondent/original accused appeared before the Court. He pleaded not guilty, hence the evidence of both the parties was recorded by the learned Magistrate and the trial was concluded in acquittal of the accused. Hence, the present appeal.

(3.) The learned Counsel for the appellant/complainant has submitted that the learned Magistrate has given erroneous finding on the point of proof of the legally enforceable liability on the part of the accused. It was wrongly held that no such cheque was issued by the accused in favour of the complainant. He submitted that complainant has examined himself and so also Bank Manager PW2/Mr. Datta Madkaikar to prove the fact of issuance of the cheque, presentation of the cheque and dishonour of the cheque for want of insufficient funds. Learned Counsel further submitted that the evidence tendered by the accused to dislodge the case of the complainant ought not to have been accepted by the learned Magistrate. The learned Counsel read over the evidence of all the witnesses to assist the Court. He pointed out the falsities in the evidence of the accused- DW1 and Kishor Borkar, the DW2. The learned Counsel submitted that the defence adopted by the accused that respondent/original accused has given a blank cheque to Kishor Borkar to help him financially in his business of fast food and the said cheque was misplaced by Kishor Borkar and that is the same cheque which was presented by the complainant in the Bank; is a concocted story. Learned Counsel further submitted that evidence of DW2/Kishor Borkar ought not to have been believed by the learned Magistrate on the point of payment of the amount by the respondent/original accused and the loss of cheque by Kishor Borkar. He further submitted that the accused has denied the fact of service of statutory notice on him. However, DW2/Kishor Borkar has given admission that on receipt of the statutory notice of the demand of money, the accused had approached him and had asked for the return of the said cheque which was alleged to have been given to him by the accused. He further submitted that the finding given by the learned Magistrate that the complainant has failed to prove the transaction between him and the accused is not correct and the judgment of the Trial Court of acquitting accused is illegal and to be set aside. The learned Counsel further submits that no reply to the notice was given by the accused and therefore the evidence of DW2/Kishor Borkar ought not to have been accepted.