COLDPOT Vs. NAIK HOTELS

JUDGEMENT

(1.) Heard. This appeal arises from the Judgment and Order dated 9.9.05, passed by the Judicial Magistrate, First Class, Panaji in Criminal Case No.799/OA/2001/D.

(2.) By the impugned Judgment, the complaint filed under Section 138 of the Negotiable Instruments Act ("the Act", for short) has been disposed of by acquitting the respondents-accused of the offence punishable under the said section. The challenge to the impugned Judgment is essentially on the ground that the trial Court failed to consider that the cheques in question were issued towards the payment of rentals from February, 2001 onwards and considering the fact that such payment was made by way of cheques, there was presumption about existence of liability of the drawer of the cheques on the day when the cheques were issued. The trial Court having ignored this aspect of the matter, as well as the the presumption arising under Section 139 of the said Act in relation to the said cheques in favour of the appellant, the impugned order needs to be quashed and set aside and the respondents be held guilty of the offence punishable under section 138 of the Act.

(3.) A complaint came to be filed in the Court of J.M.F.C., Panaji on 11.10.01, alleging that 3 cheques dated 6th June, 6th July and 6th August, all of the year 2001 issued by the respondents-accused in favour of the appellant, each worth Rs.1200/- were dishonoured for insufficient funds to the account of the accused in the Bank on which the said cheques were drawn and that, therefore, the respondents were liable to be prosecuted and punished for the offence punishable under section 138 of the Act. The complaint discloses that some air conditioners of the appellant were rented to the respondents for installation thereof in the hotel premises of the respondents No.1 and 2 and the rental charges of the said air conditions remained unpaid on 20.8.01 and hence, a legal notice dated 3.9.01 was issued, which was received by the respondent on 4.9.01. However, the respondents failed and neglected to reply to the said notice, as well as to pay the amount equivalent to one payable under the dishonoured cheques, within 15 days from the date of receipt of the notice. Evidence in the form of affidavits was filed by the appellant on 7.8.03 and the appellant was subjected to cross examination on 20.1.05 by the Advocate for the respondents. In the course of the recording of evidence, the appellant produced Return Memo, issued by the Bank and copy of the demand notice with an acknowledgment receipt in support of his case. In the course of the cross examination, a letter dated 25.5.01 sent by the appellant to the respondents, as also a copy of the legal notice dated 1.10.01 issued by the appellant and a copy of the plaint in the suit stated to have been filed by the appellant against the respondents in the Court of Civil Judge, Sr. Division, at Panaji, were also produced on record. The respondents did not adduce any evidence. The trial Court, after hearing the arguments, by the impugned Judgment, acquitted the respondents.