WILLIAM ROSARIO FERNANDES Vs. CABRAL AND CO

JUDGEMENT

(1.) THIS is complainant's appeal against the acquittal of the accused under section 138 of the Negotiable Instruments Act, 1881, ('act' for short), by Order dated 31. 03. 2005 of the learned Chief Judicial magistrate, Margao.

(2.) THE undisputed facts are as follows :-There were two agreements between the complainant and the Accused who is the proprietor of a concern known as M/s. Cabral and Company. The first agreement was dated 30. 12. 1999 and was styled as an Agreement of sale. This agreement was entered into between m/s. William's Beach Retreat Private Ltd. , of which the Complainant is the Managing Director on one hand, and the accused and his wife on the other hand. By the said agreement, the accused and his wife agreed to purchase a hotel complex known as William Resorts for a sum of Rs. 3,30,00,000/-, out of which rs. 25,00,000/- were paid and the balance of rs. 57,67,873/- was payable and was to be paid as indicated in Para 4 of the agreement by the end of January, 2001. Another agreement dated 01. 10. 2001, came to be executed between the complainant and the Accused and this agreement was styled as Agreement of settlement of Accounts. As perthis agreement, seven cheques were issued with different dates mentioned on the said cheques to the complainant and there is no dispute that the first five cheques were honoured by the accused. The dispute arose as regards the sixth cheque bearing no. 156749 dated 15. 02. 2002 and the seventh cheque bearing no. 082601 dated 15. 03. 2002. The dishonour of the said two cheques became the bone of contention between the parties. The dishonour of cheque no. 156749 dated 15. 02. 2002 became the subject matter of the C. C. no. 256/oa/ni/2002/ i. The said case ended in conviction by judgment dated 23. 11. 2004. The appeal filed came to be dismissed by the Court of Sessions on 07. 06. 2005. A revision filed against the same came to be dismissed by this Court by Judgment dated 07. 06. 2006.

(3.) THE cheque no. 082601 dated 15. 03. 2002 became the subject matter of C. C. no. 431/oa/ni/72002/f, which ended in acquittal by the impugned Judgment from which the present appeal arises.