1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.19 OF 2010 Mr. Anthony Francis D'Souza alias Mr. A.F. D'Souza, having his business office at House No.144, Opposite Bank of India, Vaiguin Waddo, Nachinola, P.O. Aldona, Bardez-Goa. …. Appellant V/s 1. Mr. Shitakant Salgaonkar Resident of House No.400/1, Coima Vaddo, Aldona, Bardez-Goa. 2. STATE, Through Public Prosecutor. …. Respondents Mr. Ressano De Noronha, Advocate for the Appellant. Mr. Sudin M.S. Usgaonkar, Advocate for Respondent no.1. CORAM : N.A. BRITTO, J. DATE : 22nd MARCH, 2010 JUDGMENT: Admit. By consent, heard forthwith. 2. This appeal is directed against judgment dated 26/06/2009, by which the accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881. 3. The complainant and the accused had business transactions. According to the complainant, the accused used to purchase construction 2 material from him and as the accused was short of funds, the accused issued to the complainant two post dated cheques, one for Rs.11,621/- dated 18/03/2008, and the other for Rs.45,000/- dated 21/04/2008. Both the cheques were deposited by the complainant for clearing, but were returned by memos dated 2/05/2008 by the bankers of the complainant with endorsement that the funds were insufficient. The complainant issued demand notice dated 7/05/2008, calling upon the accused to make payment of the amount due on the said two cheques within 15 days from the date of receipt of the said notice, which the accused received on 12/05/2008, but did not reply nor complied with it. The complaint, therefore, was filed and in support thereof the complainant was examined. The learned Magistrate noted that out of the amount of the said two cheques, the complainant was paid a sum of Rs.15,000/-, and that the complainant had admitted that an amount of Rs.5,000/- was paid to the complainant before the dishonour of the cheque and Rs.10,000/- was paid after dishonour of the cheque. The learned JMFC also noted that the complainant had admitted that he had not mentioned on affidavit that the accused had paid the said amount of Rs.15,000/-. The learned Magistrate further noted that on the date of issuance of the notice which was for Rs.46,621/-, the accused was not due to the complainant an amount of Rs.46,621/- and that the complainant had suppressed the payment of Rs.5,000/- without any explanation and, therefore, the conduct of the complainant in approaching the Court was not fair and 3 the same preposition would also apply to the payment of another sum of Rs.10,000/- which the complainant admitted to have been received after the dishonour of the cheques and before the cause of action. The learned Magistrate also noted that the payment of Rs.10,000/- ought to have been reflected in the complaint and affidavit in evidence, but these payments were suppressed by the complainant from the Court and, therefore, this conduct of the complainant in approaching the Court was also not fair and this conduct also throws doubt on the complainant's case and helps the accused to rebut the presumption. The learned Magistrate also noted that the complainant had received Rs.15,000/- from the accused, due towards the subject disputed cheques and, moreover, the complainant had admitted that on 15/03/2008, the complainant had withdrawn an amount of Rs.10,000/- by way of a cheque which was issued by the accused and had further admitted that an amount of Rs.5,355/- was encashed by the complainant by way of a cheque which was given by the accused. The learned Magistrate, therefore, noted that besides the admission of the accused that he had received Rs.15,000/- prior to the dishonour of the cheques, the complainant had also received a sum of Rs.10,000/- on 15/03/2008 and another sum of Rs.5,355/- and Rs.10,000/- on 26/03/2008 and thus the falsity of the complaint stood exposed. Ultimately, the learned Magistrate came to the conclusion that the complainant failed to prove that there was existence of legally enforceable debt to the extent of 4 Rs.46,621/- and proceeded to acquit the accused. 4. Shri Noronha, the learned Counsel appearing on behalf of the complainant concedes that a sum of Rs.15,000/- was paid by the accused to the complainant but contends that the accused had given two cheques in the sum of Rs.56,621/- which the accused was required to honour. On the other hand, Shri Usgaonkar, the learned Counsel on behalf of the complainant has brought to my notice the statement of complainant wherein he admitted that the figure of Rs.45,000/- on the cheque dated 21/04/2008 was filled in by him and according to the complainant he did it because the accused had told him to write the same. From the cross- examination of the complainant it is clearly borne out that a sum of Rs.15,000/- was paid to the complainant on two occasions, the first occasion being before the dishonour of the cheque and the second occasion after the dishonour of the cheques, but before the demand notice was issued. Moreover, it can be seen from the evidence of the complainant that in all the complainant had received a sum of Rs.36,355/- and if that be the case, there was no liability made out by the accused in the sum of Rs.53,621/-, as falsely claimed by the complainant in the complaint. The complaint was not only dishonestly filed, but was filed for an amount which was not due and payable by the accused. It has been 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 that when the cheque is for an amount due by the accused Section 138 of the Act is not attracted. The same view is also held by the Madras High Court in Angu Parameshwari Textiles V/s. Sri Rajam & Co. (Acq.D.C.C.-801). 5. Consequently, the appeal fails and is hereby dismissed with costs of Rs.5,000/- to be paid by the complainant to the accused. N.A. BRITTO, J. NH/-