1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 36 OF 2006 Mrs. Sandra Fernandes, residing at H.No. 84, Alto, Mapusa-Goa. .... Appellants V/s 1. Vithal alias Aba Satu Naik, residing at God's Gift Apartment, 1st floor, Corlim, Mapusa-Goa. 2. Savan Vithal Naik, residing at God's Gift Apartment, 1st floor, Corlim, Mapusa-Goa. .... Respondents Mr. P.A. Kamat, Advocate for the Appellant. Mr. A.D. Bhobe, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 16th JUNE, 2008 JUDGMENT : This is Complainant's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by judgment dated 10/02/2006 of the learned JMFC, Mapusa. 2. Some admitted facts need to be stated first to dispose of the present appeal. The Complainant and Shri Vithal S. Naik/A1 entered into an agreement for sale dated 25/03/1998. As per the said agreement, the Complainant along with her minor son, as vendors, agreed to sell a part of the property under Chalta No. 95 of P.T. Sheet No. 146, with house bearing no. 152/13 for a sum of Rs. 10 lacs. The property/house was agreed to be sold 2 subject to the Complainant making out a clear title. A sum of Rs. 50,000/- was paid to the Complainant by cheque. Another sum of Rs. 5 lacs by way of cheque was also handed over to the Complainant and the balance of Rs. 4.5 lacs was to be paid at the time of the execution of the sale deed. The Complainant is stated to have put the said Vithal S. Naik/A1 in possession of the said property and whereupon he was required to pay electricity and water bills, etc. It was also stipulated that in case the Complainant failed to transfer the said house property, the Complainant would be entitled to refund the amount received from Vithal S. Naik/A1 with interest at the rate of 18%. 3. Thereafter, one Maria de Conceicao Angelina Fernandes e Gonsalves and another filed a civil suit against the Complainant and her minor son, bearing RCS No. 208/1998 and along with it, an application for temporary injunction. The Complainant also appears to have filed an application for temporary injunction and the learned Civil Judge by common order dated 15/01/2000 partly allowed both the applications and restrained the Complainant and her son/defendants from temporarily transferring or alienating by way of sale or otherwise the suit house and property. Both the parties approached this Court in Writ Petition No. 9/02 on 13/02/2003. The Complainant and her said son gave an undertaking that they would not transfer or alienate by way of sale the suit house and property till the decision of the suit. 3 4. Subsequently, on 25/03/2003, the said Vithal S. Naik/A1 gave to the Complainant two cheques dated 25/03/1998, one bearing number 005342 for Rs. 4.5 lacs and the other 005344 for Rs. 2.5 lacs, drawn on Allahabad Bank. There is no dispute now that the said two cheques were drawn by the son of Vithal S. Naik/A1 by name Savan V. Naik/A2 on his own account towards the liability under the said agreement. The said cheques were deposited by the Complainant in her account in Allahabad Bank on the same day, but were returned on 26/03/2003 for insufficient funds, whereupon the Complainant sent a notice to both the accused on 27/03/2003 calling upon them to pay the amount due within 15 days, but both the accused who received the notice on 2/04/2003 failed to pay the said amount, but sent a reply dated 10/04/2003. As per the Complainant, the allegations made in the said reply were false but the liability was admitted. Neither of the parties produced a copy of the said reply dated 10/04/2003. In the said reply, the accused referred to an agreement dated 1/03/2001. Thereafter, the complaint was filed on 9/05/2003. 5. The Complainant examined herself in support of her case and so did the said Vithal S. Naik/A1. Both the accused admitted their liability towards the said cheques, when examined under Section 313 of the Code of Criminal Procedure, 1973. Both the accused also stated that the Complainant and the said accused had entered into an agreement for sale and since the 4 Complainant could not give a clear title of the property as agreed under the said agreement, the agreement was renewed in the year 2001 and the cheques were issued under the renewed agreement and since the Complainant had not made out a clear title, Vithal S. Naik/A1 asked the Bank to stop the payment. In his evidence before the Court, the said Vithal S. Naik/A1 also stated that he had requested to the Complainant not to encash the said cheques till the title of the property was clear. He had further stated that if the Complainant clears the title of the property he was ready to make the payment under the cheques. 6. Subsequently, the Complainant by legal notice dated 12/05/2003 terminated the agreement dated 25/03/1998 and the said Vithal S. Naik/A1 has contended that the said termination is illegal. The Complainant along with her said minor son thereafter filed RCS No. 147/2003 along with an application for injunction, which came to be disposed of by order dated 19/08/2004 and in the said order, the learned Civil Judge Senior Division, Mapusa has observed that under the agreement dated 25/03/1998, the defendant was put in possession of the suit house and property and as such he has no right to dispose of or alienate or create third party rights in the suit house and the property. The defendants i.e. both the accused were directed to maintain status quo in respect of the suit house and the property. 5 7. The accused in his reply dated 10/04/2003 had referred to an agreement dated 1/03/2001 and according to the accused the subject cheques were given to the Complainant under the said agreement, which agreement the accused did not put to the Complainant in her cross-examination and produced it during his own evidence. The said agreement on the face of it shows that it was executed on 25/03/1998 and carried the date of execution as 1/03/2001. When the said Vithal S. Naik/A1 was shown the said agreement, particularly, the name of the Complainant at point 'A', he stated that it did not tally with the other signatures of the Complainant on the complaint, wakalatnama, deposition, etc. This itself shows that the said agreement which carries two dates of execution, first as 25/03/1998 and then as 1/03/2001 is fabricated. This had to be seen also in the background of the fact that the said Vithal S. Naik/A1 did not show this agreement to the Complainant and therefore the contention of the accused that the subject cheques were issued subsequently under the agreement dated 1/03/2001 needs to be rejected. 8. Counsel on behalf of the Complainant contends that the subject cheques were issued by both the accused after the Complainant filed the undertaking before this Court on 13/02/2003 and the accused were fully aware of the said civil suit filed by the said Maria de Conceicao Angelina Fernandes e Gonsalves and the orders passed thereon as accused had sought 6 their intervention in the said civil suit and therefore the accused have admitted their liability and the said subject cheques were bound to be convicted by the learned trial Court. At the same time, learned Counsel on behalf of the Complainant had fairly conceded that the subject cheques were issued by Savan V. Naik/A2 towards the liability incurred by his father, the said Vithal S. Naik/A1 under the said agreement dated 25/03/1998 and being so, it is only he who would be liable to pay and not Vithal S. Naik/A1. There is merit in the said concession and it needs be accepted. 9. Shri Kamat, the learned Counsel on behalf of the Complainant submits that the subject cheques were issued by Savan V. Naik/A2 through Vithal S. Naik/A1 after the Complainant had filed the undertaking before this Court on 13/02/2003 and being fully aware of the same, the said accused cannot contend that they have no liability due to the Complainant under the said cheques. Learned Counsel further submits that the subject cheques were given inspite of the said undertaking given by the Complainant and therefore they cannot contend today that they would make the payment due to the Complainant in case the Complainant is prepared to give a clear title of the property to the accused. On the other hand, Shri Bhobe, the learned Counsel on behalf of the accused contends that the Complainant herself has terminated the said agreement dated 25/03/1998 and has filed a suit to restrain the defendants i.e. the said accused from interfering or conducting 7 any business or any activity till the suit is decided on merits. 10. In my view, Savan V. Naik/A2 having given the subject cheques by way of consideration for purchase of the said house/property under the agreement dated 25/03/1998 and having admitted his liability to pay the same to the Complainant, he could have been convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881. However, the subsequent events show that the Complainant herself has terminated the said agreement under which Vithal S. Naik/A1 was required to pay the balance amount, in addition to Rs. 50,000/- already paid, and, if the Complainant herself has chosen to put an end to the said agreement, then in my opinion, the accused would have no liability to make payment under the said agreement. In other words, since the Complainant herself has terminated the said agreement there is no debt or existing liability which the accused would require to meet towards the Complainant. In this view of the matter, the accused could not have been convicted since they are not liable to pay any amount to the Complainant under the said agreement, the same having been terminated by the Complainant. In this view of the matter, the acquittal of the accused could not be faulted. Appeal therefore is hereby dismissed. N.A. BRITTO, J. NH/-