SHYAMSUNDAR BABU NAIK DESAI Vs. BABAN ANANT NAIK

JUDGEMENT

(1.) This appeal is directed against the appellate judgment of the learned Sessions Judge, South Goa, Margao whereby the learned Sessions Judge allowed the appeal filed by the respondent and set aside the conviction and sentence imposed upon the respondent herein by the learned Judicial Magistrate, First Class, Canacona.

(2.) The appellant entered into an agreement of sale to sell 30625 sq.mtrs. property at the rate of Rs. 90/- per sq.mtr. for total consideration of Rs. 27,56,250/-to the respondent/original accused. There is no dispute that on 10-11-1995 an agreement to this effect was executed by the parties. Apart from appellant, there are other owners of the property who have signed the agreement simultaneously. The appellant had executed a power of attorney in favour of the respondent on the same day. Under the agreement, the respondent had paid a sum of Rs. 2,00,000/- at the time of the execution of the agreement and was to pay a further sum of Rs. 10,00,000/- within a period of 3 months from the date of agreement. However, it is not in dispute that the respondent had paid Rs. 7,90,000/- against Rs. 10,00,000/- which was required to be paid leaving a balance of Rs. 17,66,250/- towards the price settled in the agreement. It is likewise not in dispute that the respondent had issued a cheque in this sum. The cheque was not presented as desired by the respondent. On 20-12-1999, the respondent issued another cheque for Rs. 17,66,250/- in the name of the appellant, drawn on Centurion Bank, Panaji branch. The appellant presented the cheque for realization with his bank i.e. Mapusa Urban Co-operative Bank, Canacona branch. However the same was returned by the bank dishonoured on 24-5-2000. On 25-5-2000, the appellant issued a notice to the respondent indicating that the cheque had been dishonoured and called upon the respondent to pay the said amount of Rs. 17,66,250/- along with notice charges within 15 days of receipt of the notice. It is not in dispute that this notice was duly received by the respondent and that he failed to pay the amount demanded by the notice. The appellant then filed a complaint before the Judicial Magistrate, First Class, Canacona on 12-6-2000.

(3.) Upon respondent's appearance and his pleading not guilty, the trial commenced at which the appellant examined himself and tendered necessary documents to prove his case. The respondent was examined under section 313 of the Code of Criminal and also chose to enter the witness box in his own defence, After considering the evidence tendered, the learned Magistrate held the respondent guilty of the offence punishable under section 138 of the Negotiable Instruments Act and proceeded to sentence him to undergo simple imprisonment for one year and pay compensation of Rs. 22,00,000/- and to suffer further imprisonment for 3 months in case of default of payment of compensation.