1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.72 OF 2006 AND CRIMINAL APPEAL NO.73 OF 2006. Shri Akbar Thobani Partnerof M/s. Kantum Earth Movers with office at 3, Masjid Bldg., Malbhat, Margao, Goa ... Appellant. Versus Shri Joaquim Godinho Proprietor of S.G. Transport, residing at ASRO, 'C' Bldg, Flat No.2, Opp B.P.S. Club, Pajifond, Margao, Goa. ... Respondent. Mr. A.F. Diniz, Advocate for the appellant. Mr. Nitin Sardessai, Advocate for the respondent. Coram :- S. A. BOBDE, J. Date : - 27th March, 2008. ORAL JUDGMENT : 1. These two appeals are filed by the appellant against the acquittal of the accused for the offence U/s.138 of Negotiable Instruments Act. 2. The appellant had filed the complaints before the Trial Court that the respondent be convicted for the offence U/s. 138 of the Negotiable Instruments Act since the cheques which the respondent had 2 tendered to him have been dishonoured. There appears to be no dispute about the fact that the respondent had drawn one cheque for Rs.30,000/- dated 2.1.1998 and 4 cheques of Rs. 50,000/- each dated 30.8.1997, 30.9.1997, 30.10.1997 and 30.11.1997 respectively. All these cheques were dishonoured. The four cheques were dishonoured on 5.1.1998 and the other cheque was dishonoured on 6.1.1998. The complainant issued notice on 13.1.1998 which has been replied by the respondent. 3. The defence of the respondent is that he is not liable under Section 138 of the Negotiable Instruments Act because there was no commercial transaction between him and the complainant and, therefore, he directed the Bank to stop payments of the cheques. 4. Before the Trial Court, the defence of the respondent was that the transaction of purchase of two trucks which was to be sold by the complainant to him was not completed and, therefore, he directed the Bank to stop the payment. The Trial Court appears to have accepted this defence because the complainant did not give the details of the commercial transaction. It is difficult to imagine how the learned Trial Court found the defence credible mainly because the complainant did not set out the details. The validity of the defence was obviously liable to be tested on its own merits and not on the sufficiency of details set out by the complainant unless the Court was inclined to dismiss the prosecution on the ground of vagueness. In any case, while accepting 3 the defence the learned trial Court has failed to consider whether the case attracts the provisions of Section 138 of Negotiable Instruments Act having regard to the ingredients of the offence. There is thus, a clear perversity and non-application of mind in the judgment of the trial Court acquitting the respondent of the charge U/s.138 of the Negotiable Instruments Act. 5. In this view of the matter, the impugned judgment of the Trial Court is set aside. The matter is remanded back to the Trial Court for fresh decision in accordance with law. The trial Court shall decide the matter without being influenced by any observation made by this Court. S. A. BOBDE, J. SMA