RAJENDRA PANGAM Vs. PARESH B. NAIK AND ORS.

JUDGEMENT

(1.) This appeal is at the instance of the original complainant challenging the judgment of acquittal.

(2.) The brief facts are that the appellant/complainant filed a complaint before the learned Judicial Magistrate First Class at Ponda being Criminal Case No. 1259/NIA/2008/B under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act, for short). According to the appellant, the respondent no.1/ accused was acquainted to him since last many years. Sometime in June, 2008, the respondent no. 1 had approached the appellant at his residence stating that respondent no. 1 is in financial difficulties and requested for accommodation in the sum of Rs.75,000/-. The respondent no. 1 also promised to repay the same. The appellant accordingly, paid an amount of Rs.75,000/- to the respondent no. 1 in cash. The respondent no. 1 issued two cheques dated 07.07.2008 in the sum of Rs.35,000/- and Rs.40,000/- towards repayment of the amount. The cheques were drawn on the account of the respondent no.1 with Syndicate Bank, Kavlem Branch. When the appellant presented the cheques in his account for encashment with Ratnakar Bank Limited, Ponda Branch, the cheques were returned unpaid for want of sufficient funds. The appellant accordingly issued a notice dated 30.10.2008 calling upon the respondent no. 1 to pay the amount of Rs.75,000/- within 15 days. The respondent no. 1 failed to pay the amount inspite of service of the notice on 04.11.2008. In such circumstances, the appellant filed the complaint as stated earlier.

(3.) The appellant examined himself and produced certain documents including the subject cheques at Exhibit 24-C. The respondent no. 1 did not dispute that the cheques were signed by him. However, it was brought on record in the cross examination that the ink in which the details of the cheques are filled, is different from the ink used for signing the cheques. It appears that when the statement of the respondent no. 1 was recorded under Section 313 of the Code of Criminal Procedure, the respondent no. 1 stated that he does not wish to examine himself or any other witnesses in his defence. However, subsequently, the respondent no. 1 chose to examine himself and his examination-in-chief was recorded on 29.10.2010 and the cross examination was deferred. The record shows that after granting time to the respondent no. 1 to subject himself for cross examination, as the respondent no. 1 failed to present himself, his evidence was closed on 01.12.2010. The learned Magistrate on hearing the parties was pleased to acquit the respondent no. 1 by judgment and order dated 29.01.2011. The learned Magistrate found that the appellant had produced his Income Tax Returns for the year 2009-2010 (Exhibit 42/C), and the same did not reflect the amount allegedly advanced to the respondent no. 1. The learned Magistrate also placed reliance on the decision of the Hon'ble Apex Court in the case of Krishna Janardhan Bhat Vs. Dattatraya Hegde, 2008 4 SCC 54 and decision in the case of Sandeep Shirodkar Vs. Shankar Dhawaskar and another, 2010 2 BCR(Cri) 867, in order to hold that the alleged advance of sum of Rs.75,000/- in cash was in violation of Section 269-SS of the Income Tax Act and as such, would not constitute a legally enforceable debt/liability. In such a premise, the learned Magistrate proceeded to acquit the respondent no. 1.