ANTHONY PEREIRA Vs. RAGHUNATH P SINARAI

JUDGEMENT

(1.) THIS is Complainant's appeal and is directed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Judgment/order dated 12-2-2007 of the learned J. M. F. C. , Panaji.

(2.) THE case of the Complainant, in brief, was that the Complainant had lent a sum of Rs. 1,60,000/-, [rs. 1,00,000/-by cheque dated 19-1-1999 and Rs. 60,000/-by cash], and the accused towards repayment of the same had issued to the Complainant a cheque in the sum of Rs. 1,60,000/-dated 30-9-2000 which cheque when presented for payment was returned dishonoured as the payment was stopped by the drawer. The Complainant sent demand notice to the accused dated 23-3-2001 calling upon the accused to pay the sum of Rs. 1,60,000/-within 15 days which notice was returned as unclaimed. The Complainant therefore filed a complaint on or about 8-7-2001 against the accused under Section 138 of the said Act, and in support of the same examined himself.

(3.) ON the other hand, the case of the accused was that he did not receive any notice. It was further the case of the accused that an advertisement had appeared in a local newspaper stating that finance was available and contact number was given of one Surendra Prabhu and the accused after contacting him was directed to approach the Complainant as the Complainant was in need of Rs. 1,00,000/-for his mushroom project and thereafter the Complainant lent to the accused a sum of Rs. 1,00,000/-for a period of four months at interest of 7% per month or 84% per year and on 19-1-1999 the accused gave a signed blank post dated cheque to the Complainant drawn on Vysya Bank and two Rs. 20/-stamp papers blank but signed bearing Nos. 5469 and 5470. As per the accused, the sum of Rs. 1,00,000/-was paid to him on 22-1-1999 by cheque No. 571180 dated 19-1-1999. The case of the accused was that the Complainant did not give him Rs. 60,000/-in cash and that thereafter on 20-2-1999 i. e. one month after the Complainant had lent him Rs. 1,00,000/-, the accused gave to the Complainant Rs. 7000/-as the first monthly interest amount at 7% per month, by cheque No. 175519 drawn on Goa State Co-operative Bank, Panaji, but the Complainant did not give him any receipt. The accused also gave details of further payments made by him to the Complainant, the details of which can be seen at para 26 of the affidavit in evidence of the accused. In other words, although the case of the Complainant was that the said sum of Rs. 1,60,000/-was advanced by the Complainant to the accused without payment of interest, it was the case of the accused that he had received only Rs. 1,00,000/-from the Complainant, and towards the principal amount as well as the interest the accused had paid a sum of Rs. 1,28,555/ -. The accused examined one Damodar Prabhu who claimed to be a Financial Advisor to the Complainant as well as to the accused, and, who also stated that he had also taken three loans from the Complainant and as regards the said loans there were cases filed by the Complainant against him under Section 138 of the Act, and as regards the third loan the case was withdrawn after he had paid the amount to the Complainant. The accused had also examined one Rajan Chandreria who too claimed that he had borrowed a loan of Rs. 70,000/-from the Complainant on payment of interest at the rate of 10% per month. There was also a case filed against him by the Complainant in respect of a cheque for a sum of Rs. 1,57,000/ -. He has also stated that he had paid the amount of Rs. 70,000/-along with interest at the rate of 10% though in cross-examination he had admitted that he did not have any document to show that he had paid interest at the rate of 10%. The accused had also examined one Yeshwant Mashelkar who also claimed to have obtained a loan of Rs. 3,00,000/-from the Complainant, and against whom the Complainant had also filed a case under Section 138 of the Act.