MOHAMED ALI MULLA Vs. STATE OF GOA

JUDGEMENT

(1.) Heard Shri S. M. Volvoikar, the learned Counsel on behalf of the applicant and Shri Braz De Sa, the learned Counsel on behalf of respondent No. 2. The applicant herein is accused who has been convicted and sentenced and whose sentence has been confirmed by the learned additional Sessions Judge, Margao by judgment/order dated 6. 5. 05, under Section 138 of the Negotiable Instruments Act, 1881 (Act for short).

(2.) The applicant-accused had borrowed from the respondent No. 2 complainant a sum of Rs. 5,00,000/- (rupees five lakhs) on or about 26. 5. 2001. Subsequently, by way of repayment, the accused issued a cheque to the complainant dated 27. 8. 01 for the said sum of Rs. 5,00,000/- drawn on Madgaum Urban Co-operative Bank Ltd. , margao, but when the said cheque was deposited by the complainant into his account, it was returned dishonoured as a result of which the complainant addressed to the accused a legal notice dated 10. 9. 01 which the accused received on or about 14. 9. 01 and inspite of the said receipt, did not comply with the same as a result of which the complainant filed a complaint against the accused on 18. 10. 01.

(3.) At the hearing of this revision, three submissions have been made by Shri volvoikar, the learned Counsel on behalf of the accused. The first is that on the offence alleged to have been committed by the accused under Section 138 of the Act took place at a time when Section 138 to Section 142 were not found on the Statute Book as the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 by which they were introduced into the Negotiable Instruments act, 1881 was repealed by the Repealing and Amending Act, 2001. The second submission is that the learned Judicial Magistrate could not have imposed imprisonment in default of payment of compensation of rs. 4,50,000/and, the third is that the complainant had failed to prove that the complainant had served a proper notice, which is a condition precedent for initiation of proceedings under Section 138 of the Act, to the accused.