Criminal Appeal Nos. 58 and 59 of 2010. Case: John Sebastian Dias S/o Sebastian Dias Vs Shri B. Abdul Kadar, Civil Contractor. High Court of Bombay (India)
| Case Number | Criminal Appeal Nos. 58 and 59 of 2010 |
| Counsel | For Appellant: M. Amonkar, Adv. and For Respondents: A.P. Cardozo, Adv. |
| Judges | N.A. Britto, J. |
| Issue | Negotiable Instruments Act, 1881 - Sections 118, 138 and 139 |
| Judgement Date | November 26, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
N.A. Britto, J.
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Heard.
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By consent and for convenience, both these appeals are being disposed off by this common Judgment.
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Both the appeals are filed by the complainant and are directed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by Judgments dated 19-3-2010 of the learned J.M.F.C., Valpoi.
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The complaints were filed by the complainant for dishonour of two cheques, details of which are as follows:
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Cheque No. 846325 dated 27-4-2004 for Rs. 2,44,500/- (in C. C. No. 11/OA/2004).
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Cheque No. 846326 dated 22-4-2004 for Rs. 2,56,500/- (in C. C. No. 12/OA/2004).
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The undisputed facts are that the complainant and the accused are both contractors and come from the same village of Valpoi. The cheques were duly signed by the accused and were given to the complainant. The complainant presented the said cheques for payment but were dishonoured for insufficient funds. The complainant issued notices dated 28-5-2004 demanding the payment. The notices were replied to by the accused by reply dated 9-6-2004. The accused in the reply admitted having taken from the complainant a sum of Rs. 4,50,000/-when required. The complainant was given five blank cheques which includes two subject cheques and one bearing No. 84527 and two more cheques. The accused had further stated in the reply that the complainant had obtained the signature of the accused on a blank paper as well as on one stamp paper. The accused had stated that he had made a payment of Rs. 1,20,000/-by cash to the complainant on 18-9-2003 and Rs. 1,03,323/-on 10-12-2003 at the complainant's residence, and the accused owed the complainant only a sum of Rs. 2,26,677/-. In other words, the accused admitted having borrowed Rs. 45,00,000/-and admitted his liability to pay the balance of Rs. 2,26,677/-.
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The case of the complainant was that the accused was in need of funds for completion of a work taken by him and as such had approached the complainant with a request to finance him and had assured extra 10% payment on the borrowed amount, and accordingly the complainant had advanced the said sums between April, 2003 to September, 2003. The complainant had stated, in relation to cheque dated 27-4-2004, that he had made payment by four cheques, and in relation to cheque dated 22-2-2004 he had made payment by six cheques drawn by him on his account No. 73945 held by him in the name of M/s. Maria Constructions. M/s. Maria Constructions is a firm of which the complainant, his wife and one Ashok Angle are the partners. The complainant gave the details of the said cheques along with their numbers by which payment was made to the accused and further stated that towards the repayment of the said sums the accused had issued the subject cheques on the account maintained by him with South Indian Bank, Panaji which cheques the complainant had presented for payment with his banker Goa State Co-operative Bank Ltd. only to be returned dishonoured for want of insufficient funds. As already stated, there is no dispute that both the cheques were dishonoured for insufficient funds and a notice issued to the accused was replied to by him. The complainant as well as the accused entered the witness box and gave evidence.
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The learned J.M.F.C. acquitted the accused essentially because the complainant had paid the amount to the accused from the said firm named M/s. Maria Constructions, and, therefore the complainant had failed to prove that there was a legally recoverable debt towards the complainant as the amounts of the cheques was not due to the complainant but to the said M/s. Maria Constructions, and as the complainant had not produced any authority from the said firm. At the same time, the learned J.M.F.C. found that there were infirmities and contradictions in the evidence of the accused but...
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