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2018 Supreme(Bom) 2491
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Rama Satelkar - Appellant
Versus
K.k. Suresh - Respondent
Criminal Appeal No. 21 of 2014
Decided On : 26-10-2018
A.D. Bhobe, Adv., Nitin Sardessai, Adv., Neha Shirodkar, Adv.
Headnote:
Negotiable Instruments Act - Section 138 - Impugned Judgment - Legally Enforceable Liability - Demand Draft – Appeal Against Acquittal - At trial appellant examined himself as and produced subject cheque along with intimation from bank copy of notice and acknowledgment - Appellant also produced a copy of complaint in OA along with copy of verification at exhibit 45 - That was a complaint under Section 138 of Act filed by first respondent against - Appellant also produced copy of income tax returns and statement of profit and loss account and balance sheet as learned Magistrate came to conclusion that appellant had failed to establish that subject cheque was issued towards discharge of a legally enforceable debt or liability - Learned Magistrate also found that appellant was conducting a business of money lending without licence - In that view of matter learned Magistrate by a judgment and order acquitted first respondent of offence punishable under Section 138 of Act - Hence this appeal – Held, Thus it cannot be accepted that re was any legally enforceable liability of respondent no-1 which is established on record to repay amount to appellant - It is true that in verification bearing No - OA which was filed by first respondent against he has admitted that draft was drawn from account of appellant - However that cannot take case of appellant any further inasmuch as draft was admittedly drawn in favor of Executive Engineer for awarding a contract to and even assuming that re was any understanding between parties that work would be sub-delegated to respondent no-1 same was illegal - A legally enforceable debt or liability presupposes that liability is legally enforceable which in present case is not- For se reasons no fault can be found with impugned Judgment in acquitting first respondent - It is now well settled that this Court will not interfere with an order of acquittal unless and until view taken by Court below is an impossible view - Appeal dismissed
JUDGMENT
C V Bhadang, J. - This is an appeal against acquittal.
2. The brief facts necessary for the disposal of the appeal may be stated thus :
That the appellant (original complainant) and the first respondent (accused) are acquainted to each other. According to the appellant, the first respondent was a Sub P.W.D. Contractor and was intending to take a sub-contract from one Mr. N. B. Dhargalkar who was registered as a PWD Contractor. The first respondent approached him for grant of financial accommodation to obtain the sub-contract from Mr. Dhargalkar. It appears that accordingly the appellant obtained a demand draft dated 05.04.2008 from his account with the Goa State Co-operative Bank Ltd., Mapusa, Goa in the sum of Rs. 3,08,728/-. That demand draft was drawn in favour of the Executive Engineer WD VII (NH) PWD. Further according to the appellant, the first respondent promised to repay the said amount within one year however failed to do so. He claimed that the fist respondent voluntarily issued a cheque in favour of the appellant dated 15.06.2009 in the sum of Rs. 3,08,728/- which was drawn on the account of the first respondent with The South Indian Bank Ltd., Panaji. The cheque was dishonoured when presented for realisation on account of insufficient funds. This led the appellant to issue a notice dated 08.07.2009 to the first respondent which was received by him on 09.07.2009. The first respondent however failed to pay the amount as a result of which the appellant filed a complaint under Section 138 of the Negotiable Instruments Act (Act, for short) against the first respondent before the JMFC at Mapusa.
3. At the trial, the appellant examined himself as PW.1 and produced the subject cheque alongwith the intimation from the bank, copy of the notice and the acknowledgment. The appellant also produced a copy of the complaint in OA No.689/P/2008 alongwith copy of the verification at exhibit 45. That was a complaint under Section 138 of the Act filed by the first respondent against Mr. Dhargalkar. The appellant also produced the copy of the income tax returns and the statement of profit and loss account and the balance sheet as on 31.03.2010.
4. The first respondent examined Mr. Ulhas Kerkar, Executive Engineer as DW.1 and Mr. Sadashiv Vaze as DW.2, who is a Chartered Accountant of the appellant.
5. The learned Magistrate came to the conclusion that the appellant had failed to establish that the subject cheque was issued towards the discharge of a legally enforceable debt or liability. The learned Magistrate also found that the appellant was conducting a business of money lending without licence. In that view of the matter, the learned Magistrate by a judgment and order dated 11.09.2012, acquitted the first respondent of the offence punishable under Section 138 of the Act. Hence, this appeal.
6. I have heard Shri Bhobe, the learned Counsel appearing for the appellant and Shri Sardessai, the learned Senior Counsel appearing for the first respondent. With the assistance of the learned Counsel for the parties, I have gone through the records and the impugned judgment passed by the learned Magistrate.
7. Shri Bhobe, learned Counsel for the appellant has submitted that there is no evidence to prove that the appellant was conducting a business of money lending. It is submitted that advance of money on interest is a sine qua non for a person to be conducting a business of money lending. It is submitted that in the present case there is no evidence that the appellant had advanced the money to the first respondent or to anybody else on interest. The learned Counsel was at pains to point out the definition of ''loan'' as contained in section 2(k) of The Goa Money Lenders Act 2001, (Act of 2001, for short) in order to submit that a loan means an advance at interest. It is thus submitted that the finding recorded by the learned Magistrate that the appellant was indulging into money lending without licence is not correct.
8. It is next s
