1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.33 OF 2009 Shri Damodar R. Halarnekar resident of H.No.197, Rambhuvan Wada, Ribandar, Goa. .... Appellant V/s 1. Shri Devidas N. Narvekar Resident of H.No. 16, Old Commerce College, Altinho, Goa. 2. STATE through Public Prosecutor, High Court of Bombay at Panaji. .... Respondents Mr. S. Mahambrey, Advocate for the Appellant. Mr. M. D'Souza, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 6 th MAY, 2009. ORAL ORDER : Heard learned Counsel on behalf of the parties. 2. This is a complainant's appeal and is directed against judgment dated 9/07/2008 of the learned JMFC, Panaji acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881. 3. There is no dispute that there was a written agreement between the complainant and the accused by which a loan of Rs.1,86,000/- was given to 2 the accused on 24/08/2006 and towards the repayment of the said loan the accused gave postdated cheque of 24/10/2006. The loan was repayable within 2 months. When the said cheque was presented for payment on 28/10/2006, it was dishonoured as it exceeded the arrangement. A demand notice dated 2/11/2006 was sent to the accused which the accused received on 4/11/2006 but did not reply nor complied and, therefore, the complainant filed, the complaint on 24/11/2006. 4. The learned trial Court in acquitting the accused has accepted oral evidence, contrary to the written agreement, to the effect that only a sum of Rs.1.5 lacs was advanced to the accused and in that the learned Magistrate may not be right, but, the acquittal of the accused cannot be reversed for other reasons as well. 5. There is no dispute that the accused paid a sum of Rs.74,000/- and as stated by the complainant this amount was paid by the accused to the complainant after the dishonour of the cheque. As per the complainant's Counsel, the said amount of Rs.74,000/- was paid on 14/03/2007, Rs.24,000/- having been paid in cash and Rs.50,000/- having been paid in cheque, but, the record is totally silent either of the said date namely 14/03/2007 or the date of the cheque. According to the learned Counsel of the accused, the payment of Rs.14,000/- in cash was done on 31/10/2006 and Rs.10,000/- in cash was 3 done on 1/11/2006 and Rs.50,000/- by cheque. Learned Counsel submits that the date of the cheque is not reflected in the evidence of the parties. It is well settled that any payment made beyond 15 days of notice of demand cannot absolve an accused from liability under Section 138 of the Act. That sum of Rs.74,000/- paid by the accused to the complainant is an admitted position, but, when it was paid it is disputed and, therefore, it is not possible to come to the conclusion that Rs.74,000/- were paid by the accused to the complainant on 14/03/2007 i.e. after the expiry of the period of notice and, as such, could not have saved the accused from the offence which was completed on or about 19/11/2006 and the benefit of this situation therefore has got to be in favour of the accused. As already seen, the complainant accepted that after the dishonour of the cheque, the accused had paid to the complainant a sum of Rs.74,000/- and if that be so, it is quite probable that the said sum was paid by the accused to the complainant before 19/11/2006 that being the last date by which the accused was required to repay the amount to the complainant. It is also admitted by the parties that another sum of Rs.6,000/- was paid on the date of judgment and this certainly cannot be taken in favour of the accused. Once it is accepted that the accused had paid an amount of Rs.74,000/- to the complainant it obviously means that the accused was not liable to pay to the complainant the sum due on the cheque i.e. Rs. 1.86 lacs. As stated in the case of Laxmikant D. Naik Karmali V/s. Santosh V. Naik (2006 (2) Bom. C.R. (Cri.) 830) when a cheque is for an 4 amount more than due by the accused, Section 138 of the Act is not attracted. 6. In this view of the matter, the acquittal of the accused could not be faulted. I find there is no merit in this appeal and, consequently, the same is hereby dismissed. N.A.BRITTO, J. NH/-