NISHITH M P VERLEKAR Vs. ASHPAQUE MARFANI

JUDGEMENT

(1.) Both these appeals are being disposed of by common judgment and order since the parties are the same and the evidence led in both the matters, is almost identical.

(2.) The appellant in both the appeals, is the complainant in Criminal Case Nos.532/P/2006/C and 490/P/06/C filed against the respondent in the Court of Judicial Magistrate, First Class, Mapusa.

(3.) In Criminal Appeal No.73/2007, the complainant filed Criminal Case No.532/P/2006/C against the accused for the offence under Section 138 of the Negotiable Instruments Act ("The Act" for short) alleging that the accused had issued a cheque dated 10.06.2006 in the sum of Rs.2,15,000/- drawn on Jammu and Kashmir Bank Limited, Panaji Branch. The same was presented and returned dishonoured for the reason "Exceeds Arrangement". Thereafter, the complainant sent registered notice to the respondent dated 23.06.2006 calling upon the accused to make the payment. In spite of receipt of the said notice, the accused did not make the payment. The accused pleaded not guilty. In his statement under Section 313 of Criminal Procedure Code, the accused stated that he had paid the whole amount of loan which he had obtained from the complainant. He further stated that he had issued a blank cheque in favour of the complainant as a security. To prove the case, the complainant examined himself and produced several documents. The complainant also examined Milind Bhende as P.W.2. The accused examined himself in defence and produced several documents. The learned Magistrate, upon appreciation of the evidence led by the parties, held that the complainant had not been able to prove the offence under Section 138 of the Act beyond reasonable doubt. The learned Magistrate held that the complainant had stated that when the accused received money from him he always used to issue him a receipt and whenever the accused issued cheque in his favour, the accused used to take back the said receipt. Since the complainant had not produced original receipt or copy of the receipt, the contention that the accused used to take financial assistance from him, could not be believed. The learned Magistrate held that the notice issued to the accused prior to filing of the complaint, addressed on his shop, was received by one Joanita, who was not examined nor her signature was identified nor any evidence was led to show that the said Joanita was working for the accused at the time of service of notice. The learned Magistrate further held that the evidence of Milind Bhende P.W.2 that the accused had told him about the receipt of notice, was hearsay. The learned Magistrate placed reliance upon the evidence of the accused that the accused has stated in his deposition that he has borrowed the sum of Rs.50,000/- @ Rs.5 % per month and when he borrowed the said amount, the complainant had asked him to keep a blank cheque as a security and, accordingly, he had handed over a blank cheque and the entire loan amount was paid to the complainant, but the cheque was not returned and every time, the complainant pretended that he does not remember whether he had kept the said cheque. He further stated that he did not receive the legal notice and that signature on the acknowledgment card, was not his. The learned Magistrate held that the complainant had not proved that the notice was served on the accused since Joanita was not examined.