IMPORTANT POINT
Seniority cannot earn immunity from imposing substantive sentence.

N.A. Britto, J.—These two Criminal Revision Application can be conveniently disposed of by this common judgment. The first is filed by the accused and is directed against judgment dated 10.11.2009 of the learned Additional Sessions Judge, Margao upholding the conviction of the accused under Section 138 of the Negotiable Instruments Act, 1881. The second has been filed by the complainant and is also directed against the same judgment of the learned Additional Scissions Judge, Margao modifying the sentence imposed upon the accused by the learned J.M.F.C.

2. The case of the complainant was that the complainant is a proprietary concern of Smt. Olga Monseratta and that the accused had issued a cheque No. 813735 dated 12.3.2004 for Rs.6,11,000 to the complainant towards payment of an amount of Rs.6,27,972 which was misappropriated by Shanti Cota in collusion with the accused and the said cheque when presented for payment on 13.3.2004 was returned dishonoured on the ground that the payment for payment was stopped by the drawer. The complainant sent notice dated 25.3.2004 demanding the said payment. The accused received the notice but did not comply with the same and, therefore, the complaint was filed through the Attorney of the complainant.

3. The complainant examined herself through the said attorney and the proprietor of the complainant was examined by the accused as her witness. The complainant also examined other witnesses and from the evidence of the complainant’s witness Shri Hiru Khiyani PW 2 it is evident that the accused had an account with State Bank of India, Agricultural Branch, Margao. She did not have cheque book facility but the accused was given two cheque leaves, one of which was given by the accused to the complainant dated 12.3.2004 for Rs.6,11,000.

4. According to the complainant, the cheque was given on 5.3.2004 post-dated 12.3.2004. The accused had an amount of Rs. 6,28,791,08 as on 9.3.2004 in her account. On 9.3.2004 the accused gave stop payment instructions to the bank and when the subject cheque was presented on 12.3.2004 obviously it was dishonoured. The other cheque leaf was used by the accused on 15.3.2004 to withdraw a sum of Rs.6,11,000. That this amount was paid by the accused to the complainant is a fact which has been disbelieved by both the Courts below.

5. There is no dispute that the daughter of the accused was working for the complainant from November, 1997 to 25th February, 2004 and there were allegations that she had misappropriated certain amounts of the complainant in collusion with the accused and the subject cheque was given by the accused in settlement of the dues payable to the complainant on account of the said misappropriation. The accused, in her statement recorded under Section 313, CrPC stated that the subject cheque was forcefully taken by the complainant and the complainant also took cash of Rs. 6,11,000, after the cheque was forcefully taken. She also stated that the said Attorney Joseph Monepratte came to her house and forcefully took another Rs. 9,000.

6. The learned JMFC after taking into consideration the evidence produced by the complainant and the accused came to the conclusion that there was no evidence on record adduced by the accused to show under what circumstances the cheque came to be given to the complainant and that the only plea taken by the accused was that the said Joseph Monseratte had forcefully taken the cheque from the accused, but in the absence of any explanation as to where and how the cheque was taken and in the absence of any police complaint filed by the accused as regards the said cheque being forcefully taken from the accused, the contention of the accused was difficult to be believed. The learned J.M.F.C. observed that the facts stated by the complainant’s attorney (PW1) to the effect that the amount was misappropriated by the daughter of the accused by name Shanti Cota was admitted by the accused and the accused known (sic) down and asked