IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 86 OF 2010 IN STAMP NUMBER MAIN NO. 346 OF 2010 SHRI G. R. SHARMA ... Applicant Versus MR. R. K. SHARMA THROUGH THE COMMISSIONER OF POLICE AND ANR., ... Respondents Mr. Nitin Sardessai,Advocate for the applicant. Mr. Joseph Vaz, Advocate for the respondents. Coram:- U. D. SALVI, J. Date:- 9th June, 2010 P.C. This application has been moved for special leave to appeal against the judgment and order dated 05.11.2009 passed by the CJM, Panaji acquitting the surviving accused / respondent no.2 Arun @ Neelam - Widow of the deceased accused/ respondent No.1 R. K. Sharma, of the offence punishable under Section 406, 420, IPC, 1860 in Criminal Case No.232/2001/A. 2. Learned Advocate N. Sardessai for the appellant /complainant submitted that the Trial Court completely missed the point and proceeded to acquit the accused on the facts not germane to the case. He further submitted that the accusations were also made against the surviving accused in terms as appearing in the complaint. According to him, the complainant had cordial relations over a decade and half with the surviving accused and her deceased husband, then Inspector General of Police, State of Goa; and somewhere in the year 1991, the deceased accused requested the complainant to get the necessary plans approved from the various competent authorities for construction of a bungalow on the plot of land allotted to him in Sainik Co-operative Housing Building Society Ltd, Alto- Porvorim, Bardez, Goa and eventually the complainant could not afford to do much in that context due to his pre-occupation in legal profession; and, therefore, the deceased accused came to Goa and appointed Mr. A. J. Patil as Architect for getting the plans approved and M/s. Koshey Builder Pvt. Ltd. for undertaking the construction of the residential bungalow. 3. Learned Advocate Mr. N. Sardessai culled out from the complaint the gist of the complainant's case. The complaint reveals that the accused (both surviving and the deceased accused) expected the complainant to pay to Mr. Koshey, M.D. of M/s. Koshey Builders Pvt. Ltd. the amounts as and when demanded by Mr. Koshey towards part payment of the construction costs and further represented that they were to go on repaying or reimbursing such amounts to the complainant as and when the arrangements were made for the repayment at their end. The complaint further reveals that there were telephonic requests from the accused persons from time to time to make such payments to the Construction Contractor- M/s. Koshey Builders Pvt. Ltd. and in good faith believing that the repayments would be made by the accused persons, total payment of Rs.5,50,000/- was made over a period of time in the year 2000 to the Construction Contractor. The complaint further reveals that during the said period there was repayment of Rs.2,20,000/- by the accused persons by way of eight demand drafts. However, the balance amount, the complaint reveals, was not paid by the accused persons, and in the third week of December 2001, there was a pointblank refusal to repay the said balance amount from the accused persons. It is this refusal, learned Advocate N. Sardessai for the appellant argued, clearly revealed the dishonest intention of the accused persons and provided reason to believe that the accused had deceived the complainant by fraudulently and dishonestly inducing him to part with said payments made to the Construction Contractor on behalf of the accused persons. As regards the offence punishable under Section 406 of IPC, learned Advocate Sardessai for the appellant could not point out from the evidence as to how such offence could be made out, reasonably because the essential ingredients of the offence are found missing in the evidence. 4. Learned Advocate Sardessai for the appellant further submitted that the allegations made through the complaint were backed by the depositions of the complainant - PW1- Sharma and Construction Contractor- PW2- Koshey. In his view, the declarations made by Mr.Koshey evincing the fact of cash payments made to him by the appellant/ complainant from time to time, ought to have been given a due consideration by the Trial Court and it ought not to have rejected the evidence on the said aspect by merely labeling the Construction Contractor as a client of the appellant/ complainant. According to him, the Trial Court cursorily dealt with the evidence on record and proceeded to acquit the accused persons. Inviting the attention of this Court to the judgment reported in (2008)9 SCC 475; State of Maharashtra Vs. Sujay Mangesh Poyerekar, he submitted that it was only expected of the appellant seeking leave to appeal to make out a prima facie case or to raise debatable points as regards the impugned judgment and the Court granting leave was not expected to consider whether the order of acquittal would or would not be set aside. Truly in the words of the Apex Court "Men are fallible" and "Judges are also men" and, therefore, it is expected of this Court to apply its mind to the matter of granting special leave to appeal. 5. Learned Advocate Vaz for the respondents invited the attention of this Court to the evidence, particularly of PW2 - Koshey and the observations made by the learned Trial Court in that regard. He submitted that the Ld. Trial Court had rightly arrived at the conclusion after considering the evidence on record that there is no credible material to believe that the payments were made by the appellant/ complainant to the Contraction Contractor on behalf of the accused persons as alleged; and that no role in the alleged offence of cheating can be attributed to the surviving accused. He further submitted that no case of fraudulent and dishonest intention on the part of the accused persons, essential ingredient of cheating, has been made out in the present case. on the contrary, he submitted, the complaint reveals that the repayments were made by the accused persons and this can be a typical case of failure to keep a promise, and nothing more. In support of his submission, he placed reliance on the judgment reported in 2002(1)SCC 241; S. W. Palanitkar and Ors Vs. State of Bihar and Anr. 6. Perusal of the impugned judgment reveals that the learned Trial Court at paragraph Nos. 10 to 16 did consider the evidence on the point of the alleged payments made to the Construction Contractor by the appellant for and on behalf of the accused persons. Relying on the averments of PW2 that he had shown the payments in question in his income tax return as being received from the deceased accused, the Ld. Trial Court reached the conclusion that the amounts in questions were paid by the deceased accused No.1 and not the complainant. It is on this premise that the Ld. Trial Court disbelieved the complainant and proceeded to acquit the surviving accused. No perversity can be seen in the approach of the Ld. Trial Court in granting acquittal to the surviving accused. 7. Furthermore, a clear and distinct role of the surviving accused, possibly played in the crime, has not surfaced either in the complaint or in the depositions of the prosecution witnesses. What plagues the complaint and the depositions is the vague and garbled account of alleged deception falling short of prima facie case. Nothing arguable enures in the present case particularly in view of the peculiar facts and circumstances of the case. Granting of leave to appeal in such matter would only amount to permitting unwarranted indulgence at the expense of the judicial time as well as the time of the parties. Leave is, therefore, refused. U. D. SALVI, J. SMA