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2018 Supreme(Bom) 1999
IN THE HIGH COURT OF BOMBAY, GOA BENCH
Nutan D. Sardessai, J.
Maria Adelaide Pereira E Rodrigues Daughter of Late Leitero Simao Rodrigues - Appellant
Vs.
Neelesh Prabhudessai - Respondent
Criminal Revision Application No. 37 of 2018
Decided On : 13-07-2018.
Kaif Noorani, Adv., V. Amonkar, Adv., John A Lobo, Adv.
Headnote:
Constitution of India, 1950 - Article 227 - Negotiable Instruments Act, 1881 - Sections 8, 138 and 139 - Criminal Procedure Code, 1973 - Sections 311, 313, 397 and 391 - Goa Money Lenders Act - Section 14 - Buyer To Execute A Sale Deed - Claimed Commission - Heard learned advocate appearing for applicant and learned advocate appearing for respondent - Applicant as original accused has invoked revisional jurisdiction of this court and supervisory jurisdiction while challenging judgment of learned additional sessions judge being convicted by learned JMFC and conviction being upheld by learned additional sessions judge in appeal - Parties would be referred to as accused and complainant respectively for brevity sake hereinafter - Learned advocate for applicant submitted at outset that accused had agreed to pay commission to complainant towards procurement of a buyer to execute a sale deed in respect of her property - Respondent procured a buyer and sale deed came to be executed but complainant claimed commission of consideration of sale deed received from her daughter and received from her by a cheque which is subject matter of these proceedings – Held, Therefore even considering document issued by central board of excise and customs and accepting position that complainant was registered as a real estate agent and not at time of sale deed it would not carry any penal consequences or make amount due to him there under not a legally enforceable debt - Learned advocate for accused made a frantic bid to buttress his case that theory of commission was not believable when on complainants admission he had met daughter of accused for first time in second half - Assuming it is so transaction of sale deed was done by accused and her daughter which also recorded that there was dispute between accused and her daughter as to whether she got half right to land through her father taking into consideration endorsement of declaration of marriage of accused with her husband null and void was made after death of her husband and taking into consideration relationship of accused and her daughter it was mutually settled that both of them would hold half share each in their assets - Even at time of execution of sale deed relations between accused and her daughter were strained and which makes it all more unbelievable that her daughter would issue a cheque in a substantial amount favoring complainant towards commission payable by accused - Besides daughter had not initiated any proceedings against complainant that she was duped or induced to part with said amount as commission due from mother to complainant apart from accused not examining herself and her daughter in defense - Petition Is Dismissed.
Nutan D. Sardessai, J.
Heard Shri Kaif Noorani, learned Advocate appearing for the applicant and Shri John A. Lobo, learned Advocate appearing for the respondent.
2. The applicant as the original accused has invoked the revisional jurisdiction of this Court under Section 397 of the Criminal Procedure Code and the supervisory jurisdiction under Article 227 of the Constitution of India while challenging the judgment of the learned Additional Sessions Judge, Margao dated 03.04.2018 being convicted by the learned JMFC, Margao and the conviction being upheld by the learned Additional Sessions Judge, Margao in appeal.
3. The parties would be referred to as the accused and the complainant respectively for brevity's sake hereinafter.
4. Shri Kaif Noorani, learned Advocate for the applicant submitted at the outset that the accused had agreed to pay 1% commission in 2008 to the complainant towards procurement of a buyer to execute a Sale Deed in respect of her property. The respondent procured a buyer and the Sale Deed came to be executed on 21.05.2010 but the complainant claimed 2% commission of the consideration of the Sale Deed, 1% received from her daughter and 1% received from her by a cheque which is the subject matter of these proceedings.
The accused had issued the cheque without knowledge that 1% commission was already paid by her daughter to the complainant. There was no agreement to pay 2% commission and therefore the findings of the learned JMFC and of the Additional Sessions Judge were erroneous and liable for interference in this revision. His next plank of argument was that although there was a presumption in favour of the holder of the cheque in terms of Section 139 of the Negotiable Instruments Act (Act, for short in hereinafter), nonetheless, the holder as defined in Section 8 of the Act would have to be a person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. The question was whether the complainant was entitled to receive the amount from the accused under the said cheque and whether there was any legally enforceable debt which he could claim by way of the proceedings initiated under Section 138 of the Act.
5. Shri Noorani, learned Advocate next adverted to the records being the notice issued by the complainant, her specific reply thereto in which she had taken a plea that she had agreed to give 1% commission and that she was in a depressed state of mind when she gave the cheque to the complainant and upon knowing that he had already received 1% commission from her daughter. He next referred to the registration of the complainant as a Real Estate Agent with the Central Board of Excise and Customs and submitted that as on the date of the cheque i.e. 21.05.2010, he was not registered as Real Estate Agent and therefore he was not entitled to maintain the prosecution under Section 138 of the Negotiable Instrument Act when the amount in the cheque towards 1% commission did not amount to a legally enforceable debt. He next adverted to the evidence of the complainant and submitted that there was a duty on him to show how he was entitled to 2% commission. The judgment of the Trial Court and that of the Appellate Court were fraught with errors and therefore the same had to be set aside. Besides, the accused had lodged a complaint with the Margao Town Police Station against the complainant and had also issued a stop payment notice to her bank dated 01.06.2010 which had stopped the payment to the complainant. She was otherwise a mental patient as borne out from the medical reports produced in these proceedings and the complaint was not bonafide. There were ample powers in this Court by recourse to Section 391 read with Section 311 Cr.P.C. which had to be exercised and the matter remanded to the learned JMFC for affording an opportunity to the defendant to lead her defence considering her mental condition.
6. Shri J. A. Lobo, learned Advocate appeari
