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IN THE HIGH COURT OF BOMBAY AT GOA.

CRIMINAL APPEAL NO.57 OF 2006

Shri Shyamsundar Babu Naik Dessai,

major ina ge, business,

r/o House No.1236, Ponsulim,

Canacona, Goa.

... Appellant

v e r s u s

1.

Shri Baban Anant Naik,

s/o Anant Naik,

major in age, businessman,

r/o 'Anant Niwas'

Dr. Dada Vaidya Road,

Panaji, Goa.

2.

S T A T E

Through P.P.

... Respondents

Mr. A. D. Bhobe, Advocate for the Appellant.

Mr. A. Naik, Advocate for the Respondent no.1.

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CORAM: R. C. CHAVAN, J.

DATED: 21^st July, 2008.

ORAL JUDGMENT:

This appeal is directed against the appellate

judgment of the learned Sessions Judge, South Goa, Margao

whereby the learned Sessions Judged allowed the appeal filed by

the respondent and set aside the conviction and sentence

imposed upon the respondent herein by the learned Judicial

Magistrate, First Class, Canacona.

2.

The appellant entered into an agreement of sale to

sell 30625 sq.mtrs. property at the rate of Rs.90/- per sq.mtr.

for total consideration of Rs.27,56,250/-

to the

respondent/original accused. There is no dispute that on

10.11.1995 an agreement to this effect was executed by the

parties. Apart from appellant, there are other owners of the

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property who have signed the agreement simultaneously. The

appellant had executed a power of attorney in favour of the

respondent on the same day. Under the agreement, the

respondent had paid a sum of Rs.2,00,000/- at the time of the

execution of the agreement and was to pay a further sum of

Rs.10,00,000/- within a period of 3 months from the date of

agreement. However, it is not in dispute that the respondent

had paid Rs.7,90,000/- against Rs.10,00,000/- which was

required to be paid leaving a balance of Rs.17,66,250/- towards

the price settled in the agreement. It is likewise not in dispute

that the respondent had issued a cheque in this sum. The

cheque was not presented as desired by the respondent. On

20.12.1999, the respondent issued another cheque for

Rs.17,66,250/- in the name of the appellant, drawn on Centurion

Bank, Panaji branch. The appellant presented the cheque for

realization with his bank i.e. Mapusa Urban Co-operative Bank,

Canacona branch. However the same was returned by the bank

dishonoured on 24.5.2000. On 25.5.2000, the appellant issued

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a notice to the respondent indicating that the cheque had been

dishonoured and called upon the respondent to pay the said

amount of Rs.17,66,250/- alongwith notice charges within 15

days of receipt of the notice. It is not in dispute that this notice

was duly received by the respondent and that he failed to pay

the amount demanded by the notice. The appellant then filed a

complaint before the Judicial Magistrate, First Class, Canacona

on 12.06.2000.

3.

Upon respondent's appearance and his pleading not

guilty, the trial commenced at which the appellant examined

himself and tendered necessary documents to prove his case.

The respondent was examined under section 313 of the Code of

Criminal and also chose to enter the witness box in his own

defence. After considering the evidence tendered, the learned

Magistrate held the respondent guilty of the offence punishable

under section 138 of the Negotiable Instrument Act and

proceeded to sentence him to undergo simple imprisonment for

one year and pay compensation of Rs.22,00,000/- and to suffer

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further imprisonment for 3 months in case of default of payment

of compensation.

4.

Aggrieved thereby, the respondent took an appeal

before the learned Sessions Judge, Margao who held in favour

of the respondent and quashed and set aside the entire sentence

inflicted upon the respondent, which has propelled the appellant

to this Court.

5.

I have heard the learned counsel of the

appellant/original complainant as also the learned counsel for the

respon