PATRICIO D SOUZA Vs. OSCAR D SOUZA

JUDGEMENT

(1.) By this appeal, the appellant / original complainant challenges the judgment and order dated 20-12-2006 passed by the IInd Additional Session Judge, Panaji in Criminal Appeal No. 22/2005 acquitting the respondent No. 1 of the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ("The Act" for short) by setting aside the judgment and order of conviction dated 21-3-2005 passed by the Judicial Magistrate, First Class, Panaji in Criminal Case No. 200/OA/97/C. The parties shall, hereinafter, be referred to as per their status before the learned Magistrate.

(2.) The complainant filed above criminal case against the accused for dishonour of cheque of Rs. 3,20,000/- dated 13-8-1997 issued by the accused in favour of the complainant. It was the case of the complainant that on 4-1-1995, he ! had advanced the loan of Rs. 5 Lakhs to the accused repayable with interest @ Rs. 10,000/- per month per Lakh. According to the complainant, the accused had issued a cheque for Rs. 3,20,000/- towards part payment of the said loan amount. The complainant presented the cheque to the bank. The same was returned unpaid for insufficiency of funds. The complainant issued legal notice to the accused which was duly received by him. However, no payment was made within the stipulated time. Accordingly, the complaint was filed against the accused. The accused pleaded not guilty. In the course of the trial, the complainant examined himself and also examined two bank managers namely Joquim Mario D'Souza P.W.2, Salvador Pinto P.W.3. In the statement under Section 313 of Criminal Procedure Code, the accused stated that he had never obtained loan from the complainant nor he had issued the cheque and false case was filed against him. In defence, the accused examined himself and also examined two witnesses namely Dipak Govekar, D.W.2 and Uma Shankar Hirapeth D.W.3, Chartered Accountant and produced some documents. Upon consideration of the evidence, oral and documentary, led by the parties, the learned Magistrate by the judgment and order dated 21-3-2005, convicted the accused for the offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for 6 months and also ordered to pay compensation of Rs. 6.40 Lakhs. Against the judgment and order passed by the learned Magistrate, the accused preferred an appeal to the Sessions Court, Panaji which was made over to Ilnd Additional Session Judge, Panaji, who after hearing the parties by the impugned judgment and order dated 20-12-2006, allowed the appeal and acquitted the accused of the offence punishable under Section 138 of the Act.

(3.) The lower Appellate Court upon appreciation of the evidence led by the parties, held that the complainant had discharged the burden of proving that the amount of the cheque was not legally recoverable. It was further held that the complainant had failed to prove that he had given the loan of Rs. 5 Lakhs to the accused. It was also held that the complainant was a money lender and he had not obtained licence under the Goa Money Lenders Act, 2001. On these grounds, the lower Appellate Court acquitted the accused of the offence punishable under Section 138 of the Act.