1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.20 OF 2010 Vividha Urban Co-operative Credit Society Limited, With its Head Office at Navelim, Bicholim-Goa, And Branch at Bhamai, Pale-Goa. Represented herein by its Authorized representative Shri Balwantrao Jaiwantrao Desai, 37 years of age, r/o. H.No.106/1, Maulingetwada, Sanquelim-Goa. …. Appellant V/s 1. Gurudas Krishna Fatrekar, R/o. H.No.206, Tale Math, Ambegal, Pale-Goa. 2. STATE, Through Public Prosecutor, High Court of Bombay. …. Respondents Mr. A.D. Bhobe, Advocate for the Appellant. Mr. J. Godinho, Advocate under legal aid scheme for Respondent no.1. CORAM : N.A. BRITTO, J. DATE : 22nd MARCH, 2010 JUDGMENT: Admit. By consent heard forthwith. 2. This is an appeal filed by the complainant against the acquittal of the accused by judgment dated 23/10/2009, under Section 138 of the Negotiable Instruments Act, 1881. 2 3. The complainant is a co-operative credit society. The complainant had given a loan to the accused in a sum of Rs.35,000/-, on or about 22/11/2003, repayable by instalments of Rs.850/- per month and with interest at the rate of 16% with quarterly rests. The subject matter of the complaint was a cheque issued by the accused in the sum of Rs.30,000/- dated 16/01/2008, which when presented for payment was returned dishonoured on the ground that the funds were insufficient. A demand notice was issued by the complainant and the same was received by the accused, but was not replied to. The complainant examined one Vishwajeet Gauns in support of the complaint. The said Vishwajeet Gauns admitted, in the course of his cross-examination, that the accused had deposited a sum of Rs.21,809/- by December, 2007. On behalf of the complainant it was also admitted that as per the loan agreement, the interest which was payable was with quarterly rests. On behalf of the complainant, the said witness further admitted that they had charged interest to the account of the accused, with monthly rests. A further admission was obtained on behalf of the accused that the complainant had not intimated the change of interest to the accused. It appears that there was a clause in the loan agreement namely clause no.5, by which the accused had agreed to pay interest with quarterly rests. When the said condition was brought to the notice of the complainant's witness, he had admitted the said condition. There was no other condition that the accused was liable to pay interest as revised by the complainant, from 3 time to time. 4. The learned JMFC has come to the conclusion that in case the complainant had calculated interest on quarterly basis then the accused would not be liable to pay an amount more than Rs.11,000/- and odd. This factual position is not contested on behalf of the complainant. Shri Bhobe, the learned Counsel appearing on behalf of the complainant has submitted that the complainant charged interest at different rates as per policy decisions taken by the complainant and intimated to the borrower by notice on the notice board of the said complainant. However, learned Counsel has not been able to point out to any clause in the loan agreement between the complainant and the accused in that regard. It appears that this is a case where the subject cheque was issued for more amount than due to the complainant and, being so, the acquittal of the accused on that count could not be faulted. This is also a view held by this Court in the case of Laximikant D. Naik, Karmali V/s. Santosh V. Naik (2006 (2) Bom. C.R. (Cri.) 830). 5. The view held by the learned JMFC is a reasonable and plausible view. It need not be interfered with in this appeal. Consequently, the appeal is hereby dismissed. N.A. BRITTO, J. NH/-