IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 87 OF 2008 SMT. GOOLCHERHER N. LANGRAN ... Petitioner Versus THE STATE OF GOA AND ANR., ... Respondents Mrs. A. A. Agni, Advocate for the Petitioner. Ms. W. Coutinho, P.P for respondent no.1. Shri Arun Braz De Sa, Advocate for respondent no.2. Coram:- N. A. BRITTO, J. Date:- 22nd July, 2009 P.C. Heard. The challenge in this revision is to the order dated 18.11.2008 of the Learned Sessions Judge, Margao upholding the order dated 12.8.2008 of the Learned Magistrate (J.M.F.C), Margao, convicting the petitioner/accused under section 138 of the Negotiable Instruments Act, 1881. 2. Case of the complainant was that the accused was paid a sum of Rs.6 lacs for purchase of machinery and upon failure to deliver the goods, accused issued the subject cheque bearing no.458266 dated 27/6/2003 for a sum of Rs.1.25 lacs which cheque when presented for payment was returned dishonoured, upon which the complainant issued a demand notice and upon failure of the accused to comply with the same, filed the complaint against the accused. 3. Both the parties led evidence in support of their cases. It was the case of the accused that after the said amount of Rs.6 lacs was paid by the complainant to the accused, there was some dispute between the complainant and the accused whereupon the husband of the accused agreed to sell the said machinery to a third party and to repay the consideration to the complainant. It was also their case that the subject cheque was given as security. Both the courts after considering the evidence led by the complainant as well as the accused has convicted the accused. 4. At the haring Shri Braz De Sa, Ld. Counsel appearing on behalf of the complainant has submitted that the subject cheque was issued by the accused from a joint account held by her alongwith her husband and it was issued towards a liability which her husband owed to the complainant and as such was rightly convicted by the courts below. Mrs. Agni, Ld. Counsel on behalf of the petitioner/accused has submitted that in respect of the same transaction there were three cases filed by the complainant, the case at hand being the third. Ld. Counsel has further submitted that in one case the accused was acquitted and the complainant did not challenge the acquittal. In the other cases, the Ld. Counsel submits that this court vide Judgment dated 24.11.2008 in Criminal Appeal No.59/2007 did not interfere with the Judgment of acquittal dated 16.5.2007 in CC No.212/OA/NI/2003/11 and the said Judgment has attained finality. Ld. Counsel submits that two cases of two other cheques given by the accused in the course of the same transaction in the sum of Rs.1.25 lacs each having ended in acquittal, this case cannot end in conviction and as such the petitioner/accused deserves to be acquitted in this case as well. Ld. Counsel on behalf of the petitioner has further submitted that two other cases which ended in acquittal were based on the similar evidence produced in those cases. Ld. Counsel has placed reliance on the Judgment of the Apex Court in the case of Suresh Prabhakar Prabhu v/s. Mira Wilma Pimenta & Anr. 5. Admittedly in respect of four cheques in the sum of Rs.1.25 lacs each the complainant had filed three cases two of which have ended in acquittal and the acquittal has attained finality. The parties ought to have ensured that all the cases were filed before the same court and decided at the same time. However, that did not happen. The Apex Court in the case of Suresh Prabhakar Prabhu V/s. Mira Wilma Pimenta & Anr unreported decision dated 29.8.2008 in Criminal Appeal No.879 of 2002 has observed with reference to the facts of that case that finding of fact was recorded by the High Court in 18 cases that the accused Suresh Prabhakar Prabhu had ceased to be a Director of the Company as on 6th May, 1996 and the said finding had become final and as such it was not proper for the High Court to permit in respect of the same company five other cases to proceed, merely because the respondent had disputed the correctness of the holding of elections etc. The Hon'ble Supreme Court further observed that the question of fact stood determined by the High Court when it allowed the 18 criminal revision applications by holding that the said accused had resigned and which resignation had become effective. Once this finding had been recorded, the High Court ought to have applied the same while considering the other criminal revision applications, notwithstanding the non-acceptance of the factum election of the complainant and as such proceeded to set aside the Judgment of the High Court. 6. On the basis of the evidence which is almost identical, one case attained finality as the complainant did not appeal from the order of acquittal of the Magistrate, and in the other case the order of acquittal attained finality by virtue of Judgment of this Court referred to hereinabove. If, on the basis of the evidence which is identical, two cases have resulted in acquittal, there is no question of recording a conviction on the same evidence in the third case, following the principle laid down by the Apex Court int he case cited hereinabove. 7. In view of the above, this revision needs to succeed. Consequently, the same is hereby allowed and the Judgments of the courts below are hereby set aside. Petitioner/accused shall stand acquitted under section 138 of the Negotiable Instruments Act, 1881. The petitioner is at liberty to withdraw the bank guarantee given in Cr.M.A. No.45/2009. N. A. BRITTO, J. oc