RAMDAS ANANT NAIK Vs. JACOB FERNANDES

JUDGEMENT

(1.) THE Appellant is the original Complainant. He is challenging the judgment and Order passed by the Judicial magistrate, First Class at Margao in Criminal case No. 335/n/97/d. By the said Judgment and Order dated 11th February, 2004, the trial court was pleased to acquit the Accused for an offence punishable under Section 138 of the negotiable Instruments Act, 1881 (Act, for short ).

(2.) THE brief facts which are relevant for the purpose of deciding this Criminal Appeal are as under:-The Appellant filed a complaint against respondent No. 1 under Section 138 of the said act in the Court of the Judicial Magistrate, First class at Margao. It was alleged in the complaint that the Accused had taken a friendly loan to the tune of Rs. 7,50,000/- from the Complainant and had promised to pay the same with interest at the rate of 22% per annum. It was alleged in the complaint that the Complainant had borrowed part of amount from his friends and well-wishers and had given it to the Accused. It was further alleged that the Accused handed over to the Complainant a cheque for an amount of Rs. 7,50,000/- dated 02-06-1997 which was drawn on Canara Bank, Chandor. However, on presentation of the said cheque it was returned dishonoured to the Complainant through his Bankers on the ground of "insufficient funds". Thereafter, a complaint was filed when the Accused did not pay the amount within 15 days from the receipt of the statutory notice which was sent by the complainant.

(3.) I have heard the learned Counsel appearing on behalf of the Appellant and the learned Counsel appearing on behalf of the respondent No. 1. The learned Counsel appearing on behalf of the Appellant has taken me through the Judgment of the trial Court as also the evidence adduced by the Complainant and the Respondent. He submitted that the trial court had erred in coming to a conclusion that there was no subsisting debt or liability inter se between the parties. He submitted that the trial court had clearly erred in coming to a conclusion that the presumption which was raised under Section 139 of the said Act was rebutted by the Accused. He further submitted that the Accused had kept on changing his defence from time to time and this fact was borne out by the evidence which had come on record. He submitted that, therefore, the accused by raising these inconsistent pleas had not discharged the burden which was cast on him under Section 139 of the said Act. He submitted that at one stage the Accused had taken a defence that the cheque was issued by him as a Director of the Company and on the other hand he had taken a defence that he did not owe any money to the Appellant and that the Company namely M/s. Waves Shipping Pvt. Ltd. owed the money to the Complainant. He further submitted that the Accused at the same time had raised a defence that the cheque in question was given in lieu of the transaction of sale of property and the said transaction not having materialised there was no question of payment of the said amount. The learned counsel appearing on behalf of the Appellant submitted that the trial Court has erred in not appreciating the fact that the 2 transactions were separate and distinct and did not overlap one and another. The learned Counsel further tried to point out from the cross-examination and the admission given by the Accused that none of the defences which he had raised however was correct. He, therefore, submitted that the finding recorded by the trial Court was liable to be set aside and the Accused was liable to be convicted for the offence punishable under Section 138 of the said Act. He submitted that the finding given by the trial Court that the cheques which were issued by the Accused were blank cheques was not based on proper evidence of the Accused.