VIJAY SHIVPAD ERANDOLE Vs. ASHWINI SHARAD KAVADI

JUDGEMENT

(1.) THE petitioner is the original accused and the respondent No 1 is the original complainant in Criminal Case No 541/n/97/d The said complaint was filed by the respondent No 1 under section 138 of the Negotiable Instruments Act It was alleged in the complaint that the complainant and her father-in-law had given power of attorney to the petitioner herein to sell two flats for an amount of Rs 3,00,000/- each and after the said transaction was completed the respondent No 1 issued two cheques of Rs 3,00,000/- each These cheques were deposited by the complainant in her Bank However, both the cheques were dishonored and therefore a criminal complaint was filed under section 148 of the Negotiable Instruments act The learned Magistrate convicted the accused and sentenced him to punishment until the rising of the Court and further directed him to pay compensation of Rs 3,00,000/- to the complainant and in default to undergo simple imprisonment for three months against the said judgment and order, an appeal was preferred by the petitioner before the district and Sessions Court, Margao bearing criminal Appeal No 02/04 The District and sessions Judge dismissed the appeal by Judgement and Order dated 19 8 04 Being age grieved by the said judgment and order, the petitioner has preferred this Criminal Revision Application

(2.) IT was submitted by the learned Counsel appearing on behalf of the petitioner that both the lowel Courts had erred in overlooking the fact that the debt or liability against the petitioner was illegal and/or further not legally enforceable as other liability as contemplated under section 138 of the negotiable Instruments Act, 1881 It was submitted that though this plea was raised, both the lower Courts had not given any finding how the debt alleged against the petitioner was legally enforceable debt or other liability It was further submitted by the learned Counsel appearing on behalf of the petitioner that the consideration for the sale of two flats as per the Sale Deed dated 29-11-1995 was Rs 2,15,000/- which had been brought on record by the petitioner and therefore the amount of rs 3,00,000/- could not be presumed to be the sale price cf any of the flats in question the learned Counsel appearing on behalf of the petitioner further submitted that both the lower Courts had not taken into consideration exh 70 which was a letter signed by the husband of the complainant in which it was specifically mentioned that the said cheques were given subject to the condition of deposit of the gold ornaments to the petitioner as security he therefore submitted that the respondent not having deposited the gold ornaments with the petitioner as security section 138 of the Negotiable Instruments Act, will not be attracted in the facts and circumstances of the case and that the Court had no jurisdiction to entertain the complaint It was further submitted that both the lower Courts had wrongly discarded document dated 3-10-97 at Exh 70 and the undated document signed by the husband of the complainant He submitted that both these documents clearly showed that the husband of the complainant had admitted that no amount was due and payable to the complainant for the sale of the flats at Sangli and that the said transaction was complete He submitted that both the lower courts have discarded this document on conjectures and surmises. He submitted that both the courts ought to have shown that the burden that was cast on the accused by virtue of section 139 of the Negotiable instruments Act had been duly discharged by the accused on the basis of the said two documents and on production of the Sale Deed he submitted that therefore the initial burden having been rebutted by the accused, it was the duty of the complainant to prove her case beyond reasonable doubt. He submitted that the complainant had miserably failed in establishing beyond reasonable doubt that the said amount of Rs. 3,00,000/- was due and payable for an existing debt of liability. He further submitted that the demand made by the respondent No. 1 was omnibus demand which was without any legal basis and there was no evidence to prove that it was a legal liability.

(3.) THE learned Counsel for the petitioner further submitted that the lower Appellate court had not given any reason for coming to the conclusion that the respondent was entitled to get compensation of Rs. 3,00,000/ -. He submitted that no finding was recorded by the lower Court and further no evidence was produced by respondent No. 1 on the question of the said compensation.