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2014 DIGILAW 846 (BOM)

Chater S. Jain v. B. Abdul Kadar

2014-04-01

U.V.BAKRE

body2014
Judgment : 1. Heard Mr. Rodrigues, learned Counsel appearing on behalf of the appellant and Mr. Ramani, learned Counsel appearing on behalf of respondent no. 1. 2. This appeal is directed against the judgment and order dated 31/08/2010 passed by the learned Judicial Magistrate, First Class, Panaji, Goa (JMFC) in Criminal Case No. OA/86/07/D/C. The appellant was the complainant whereas respondent no.1 was the accused in the said case. Parties shall, hereinafter, be referred to as per their status in the said criminal case. 3. The complainant had filed the complaint under Section 138 of the Negotiable Instruments Act ('N.I. Act') against the accused. The case of the complainant was as follows : The complainant and others had floated a company by name “Focus Construction & Contracting Company Pvt. Ltd.” ('the Company'), at Porvorim, Bardez, Goa. The accused bought the Company and the shares of the complainant for total consideration of Rs. 3,50,000/-. Towards initial part payment of consideration amount, the accused issued a cheque bearing no. 0812114 dated 01/02/2003 drawn on Bank of India, Campal, Panaji, for Rs. 75,000/-. The said cheque, when deposited for realization, was returned unpaid on 21/03/2003 with the remark 'funds insufficient'. The accused requested the complainant not to take legal action and promised to pay in cash or issue another cheque. Thereafter, the accused issued two cheques in favour of the complainant. One was bearing no. 847256 dated 30/04/2005 for Rs. 50,290/- drawn on the South Indian Bank Ltd., Panaji Goa. The accused, however, requested the complainant not to deposit the same. The accused revalidated this cheque by changing the date to 01/09/2005 which date was again change to 01/12/2006. The other cheque was for 50,000/- drawn on The South India Bank, Panaji, in October, 2004. However, the accused requested the complainant not to deposit this cheque since he did not have sufficient funds in his account. The accused then issued another cheque bearing no. 6126988 dated 30/05/2006 for Rs. 50,000/- drawn on Bank of India, Campal, Panaji. The complainant deposited the said cheque no. 6126988 dated 30/05/2006 in his account, in Canara Bank, Panaji on 28/11/2006, but the same was returned unpaid on the same day with remark 'funds insufficient'. The complainant issued legal notice dated 05/12/2006 to the accused which was duly received by the accused but he neglected to make the payment. Hence the complaint. The complainant deposited the said cheque no. 6126988 dated 30/05/2006 in his account, in Canara Bank, Panaji on 28/11/2006, but the same was returned unpaid on the same day with remark 'funds insufficient'. The complainant issued legal notice dated 05/12/2006 to the accused which was duly received by the accused but he neglected to make the payment. Hence the complaint. This complaint was registered as case no. OA/87/2007/D. 4. Substance of accusation was explained to the accused and he pleaded not guilty. The complainant examined himself as PW1, Abel Santan Vaz as PW2 and one John Ibrahim as PW3. The statement of the accused under Section 313 of Cr.P.C. came to be recorded. The accused examined himself as DW1. 5. By Judgment and Order dated 31/08/2010, the learned JMFC acquitted the accused. 6. Perused the original record and proceedings. 7. From the perusal of the complaint, registered as case No. OA/86/2007/D, as narrated above, as also the substance of accusation explained to the accused person, it can be certainly said that the said case no. OA/86/2007/D pertained to the cheque bearing no. 6126988 dated 30/05/2006 for Rs. 50,000/- and not for the cheque bearing no. 847256 for Rs. 50,290/-. The complainant as well as the accused had filed written arguments in the said case No. OA/86/2007/D, which confirm that the said case pertained only to the cheque no. 6126988 dated 30/05/2006 for Rs. 50,000/-. However, a perusal of the impugned judgment and order dated 31/08/2010 passed by the JMFC in Criminal Case No. OA 86/07/D/C reveals that the same pertains to cheque no. 847256 dated 01/12/2006 for Rs. 50,290/-. The learned Counsel appearing on behalf of the parties submitted that the case pertaining to the said cheque no. 847256 dated 01/12/2006 for Rs. 50,290/- was registered under no. OA/290/07/C. Since the complaint registered under no. OA/86/07/D pertained to only one cheque bearing no. 6126988 dated 30/5/2006 for Rs. 50,000/-, the judgment ought to have been in respect of the said cheque. There is, therefore, apparent mistake committed by the learned JMFC in disposing of the case No. OA/87/2007/D due to which I am unable to dispose of the present appeal on merits, which is filed in respect of Criminal Case no. OA/86/07/D/C pertaining to the cheque no. 6126988 dated 30/05/2006 for Rs. 50,000/-. The learned JMFC ought to have been careful while deciding the cases. OA/86/07/D/C pertaining to the cheque no. 6126988 dated 30/05/2006 for Rs. 50,000/-. The learned JMFC ought to have been careful while deciding the cases. Prejudice has been caused to the parties on account of the negligence of the learned JMFC. In the circumstances above, this Court is left with no other alternative then to quash and set aside the impugned judgment and order and to remand the matter to the learned JMFC for passing a fresh judgment in the said case no. OA/ 86/07/D/C pertaining to cheque no. 6126988 dated 30/05/2006 for Rs. 50,000/-. 8. In the result, the following order is made : (a) Impugned judgment and order dated 31/08/2010 passed in Case No. OA/86/07/D/C is quashed and set aside. (b) Original record and proceedings shall be sent back to the learned JMFC, expeditiously and in any case within 30 days from today. (c) The Magistrate shall pass a fresh judgment in Case no. OA/86/07/D/C pertaining to the cheque bearing no. 6126988 dated 30/05/2006 for Rs. 50,000/-, by hearing the parties afresh, if they desire so. (d) The Trial Magistrate to dispose of the said case within 30 days from the date of appearance of parties before it. (e) Parties to appear before the Trial Magistrate on 10/06/2014 at 10.00 a.m.