NILESH H SHETYE Vs. SHARADCHANDRA C SALKAR

JUDGEMENT

(1.) This is a complainant's appeal and is directed against the acquittal of the accused under Section 138 of Negotiable Instrument Act, 1881 by judgment/order dated 12.3.2008.

(2.) The complainant and accused, both commerce graduates and having technical background had entered into the partnership business under the name and style 'M/s. Excel Sales and Services' for repairs of home appliances, electronic goods, spares on mutually agreed terms w.e.f. 21.1.2003. The agreement also provided for an arbitration clause. However, the partnership business did not even continue for a period of seven months, as the accused started the same business, in the same name, but individually stating that the management of Whirlpool had authorized him to do so on account of mis-management of the affairs of the firm. The partnership firm had opened an account with Karnataka Bank Ltd., Panaji. The accused thereafter opened an account with Corporation Bank, Panaji w.e.f. 31.7.2003 and started operating the same as that of his proprietorship business in the same name.

(3.) A year later, the complainant on or about 22.7.2004 sent a letter to the accused calling upon the accused to make full and final settlement, as the accused had not made any payment inspite of assurance given. Thereafter, the complainant on or about 13.8.2005 sent a statutory demand notice. In the said notice, the complainant alleged that the accused had issued to him 11 cheques, all drawn on the Corporation Bank, Panaji, for a total amount of Rs. 1.7 lakhs with different dates stating that it would be convenient for him to arrange for their clearance/payment from his account in the Corporation Bank, Panaji, since the accused was not in a position to pay the said amount at one time. It was further stated that there were repeated requests by the accused to delay the presentation of the said cheques and as such the complainant deferred the presentation of the cheques for clearance but when the complainant deposited the said cheques on 23.7.2005 in an account maintained by him in HDFC Bank, Panaji, all the said cheques were returned unpaid with an endorsement that the account was closed. The accused was called upon to pay the said amount of Rs. 1.7 lakhs.