CRIA-53-2017.DOC

Meena

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL APPEAL NO.53 OF 2017

Shri Govind B. Prabhugaonkar

Son of Shri Bhiku Prabhugaonkar

Major in age, Indian National,

Resident of H. No.832/1,

Shelim Loliem, Canacona, Goa

… Appellant

Versus

Shri Rajendra Anant Varik,

Son of Shri Anant Varik,

Major in age,

R/o. of Agas, Mashem,

Canacona Goa.

… Respondent

Shri V.A. Lawande along with Shri Parimal Redkar, Advocate for the

Appellant.

Shri John A. Lobo, Advocate for the respondent.

CORAM:

BHARAT P. DESHPANDE,J.

RESERVED

ON :

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PRONOUNCED

ON :

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JUDGMENT:

1.

The present appeal is filed by the appellant/original complainant

thereby challenging the judgment and order passed by the First Appellate

Court in Criminal Appeal No.72 of 2016 dated 09/12/2017 wherein the said

appeal filed by the respondent was allowed and judgment and conviction

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passed by the trial Court under Section 138 of the Negotiable Instruments

Act ('the N.I. Act' for short) was quashed and set aside.

2.

Vide order dated 03/10/2017 in Criminal Misc. Application No. 184

of 2017, leave to file an appeal was granted. Accordingly, the appeal was

registered.

3.

Heard learned Counsel Shri V.A. Lawande along with Shri Parimal

Redkar, for the appellant and learned Counsel Shri John A. Lobo for the

respondent.

4.

The parties are hereinafter called as complainant and accused as they

were arrayed before the trial Court for the sake of convenience.

5.

In nutshell, the complaint was filed before the learned Magistrate at

Canacona against the accused which was registered as Criminal Case

No.29/NI/2014. It was the complaint under Section 138 of the N.I. Act. In

short, it is the case of the complainant that he knows the accused and both of

them are distant relatives. The accused borrowed a sum of 2,00,000/- from

₹

the complainant for his personal needs. Towards repayment of such borrowed

amount, the accused issued two cheques in favour of the complainant dated

04/06/2014 amounting to 1,00,000/- each, drawn on Corporation Bank,

₹

Loliem branch Canacona. The complainant presented both cheques for

encashment on 15/07/2014. However, the cheques were returned with the

endorsement "Account closed". This memorandum was received by the

complainant on 15/07/2014. A legal notice dated 16/07/2014 was addressed

to the accused through the registered post demanding the amount of

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2,00,000/- within 15 days failing which action would be initiated under

₹

Section 138 of the N.I.Act. Though the accused received the notice on

18/07/2014, failed to comply with it. The accused replied to the said notice

denying the liability and claimed a false defence. Accordingly, a complaint was

lodged. Upon issuance of the process, the accused appeared before the trial

Court and thereafter, the trial commenced. The complainant stepped into the

witness box and produced both the cheques, cheque return memo, legal

notice as well as reply received from the accused. One witness was examined

by the complainant being the Branch Manager of Corporation Bank wherein

the accused was having Savings Bank Account.

6.

While answering the questions put to the accused under Section 313 of

Cr.P.C., he admitted a relationship with the complainant and also borrowing

of the amount of 2,00,000/- from the complainant while answering question

₹

Nos.1 and 2. The accused did not step into the witness box.

7.

The learned Magistrate at Canacona in its judgment dated

05/08/20016 observed that the accused is guilty for the offence punishable

under Section 138 of the N.I. Act as he issued the cheque for legally

enforceable debt and failed to comply with the conditions of the notice when

he was informed that such cheques bounced for the reason 'account closed'.

The accused failed to pay the said amount of 2,00,000/- within 15 days

₹

from the receipt of notice and also failed to rebu