SEBASTIAO FERNANDES Vs. NAUSO N KEPKAR

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, by Judgment dated 23-9-2005.

(2.) The complaint was filed by the Complainant with the allegation that the Complainant had advanced an amount of Rs. 1,00,000/- to the accused in the month of May, 2002 by way of a loan which the accused had promised to repay with interest at the rate of 18% per year. It was further alleged by the Complainant that inspite of oral request to the accused to repay the said loan along with interest the accused failed to repay the same but by way of repayment issued two cheques in favour of the Complainant due towards principal amount. The case of the Complainant was that cheque No. 615602 dated 5-5-2002 for Rs. 50,000/- drawn on Goa State Co-operative Bank, Margao, when presented for payment was returned dishonoured on 14-5-2002 with endorsement that the funds were insufficient whereupon the Complainant issued a notice dated 19-5-2003 to the accused demanding payment within a period of fifteen days which the accused neither replied nor complied. The Complainant examined his wife and attorney in support of the complaint.

(3.) The case of the accused was that he never took any loan from the Complainant nor had issued any cheque in favour of the Complainant. It was the case of the accused that somewhere in the year 2001, Avelina Fernandes, who admittedly is a niece of the Complainant, along with the accused wanted to purchase a plot of land for which the accused had issued two cheques for a sum of Rs. 50,000/- each keeping the remaining portion blank and had handed them over to the said Avelina Fernandes for the purpose of security. The accused gave his own evidence in support of his defence and also examined two witnesses and besides produced the counterfoils of the cheques from numbers 615601 to 615625 which included the counterfoil of the subject cheque No. 615602 and which counterfoils show, as noted by the learned Additional Sessions Judge, that the first cheque No. 615601 was issued on 20-10-2001 and the last cheque No. 615625 was issued on 17-4-2002, and which would show that the cheque book containing the said cheque numbers was utilized by the accused from October, 2001 to April, 2002.