N.A. Britto, J.@mdashHeard Learned Counsels on behalf of both parties.
2. This is complainant''s appeal and is directed against Judgment dated 10.9.2007 of the Learned Additional Sessions Judge, Panaji, acquitting the accused u/s 138 of the Negotiable Instruments Act, 1881.
3. The case of the complainant, in brief, was that the accused had issued to the complainant three cheques for a total sum of Rs. 5,00,000/-towards part payment of the amount of Rs. 11,00,000/- taken by the accused from the complainant for the purchase of flats, and, as the accused was unable to deliver the flats, the accused had given the said cheques to the complainant which were deposited by the complainant, only to be returned dishonoured, with endorsement of the bank that the funds were insufficient.
4. The complainant examined himself in support of his case. The case of the accused was that he had not issued the said cheques to the complainant. The accused examined himself in support of his defence and in his cross examination, it was brought out, that the accused had misplaced the said cheques.
5. The accused was initially convicted by the Learned trial Court by Judgment dated 13.1.06 but came to be acquitted by the Learned Additional Sessions Judge. It appears that at the close of the case, before the Learned Additional Sessions Judge, the complainant filed an application for production of an agreement between the parties dated 11.5.02 which was objected, and the same came to be disallowed by the Learned Additional Sessions Judge, stating that the complainant''s evidence was recorded on 22.11.04 and a direction was given to him to produce all the written correspondence pertaining to the case and the case was adjourned to enable the complainant to do so but on the adjourned date the said agreement was not produced nor any reason was advanced for non production of the same, despite the said direction. The Learned Additional Sessions Judge also referred to the evidence of the complainant and observed that in case the first agreement referred to by the complainant was taken by the accused at the time of handing over the subject cheques, the complainant had not explained as to how the said agreement dated 11.5.02 came in his possession. The Learned Additional Sessions Judge also observed that a marathon cross- examination was done and from the evidence of the complainant it could be clearly seen that the point of limitation which was urged before the Learned Additional Sessions Judge was also raised before the trial Court and therefore the complainant could not turn back and say that the point of limitation was raised for the first time before the First Appellate Court. The Learned Additional Sessions Judge also observed that the complainant was trying to fill in a gap/lacuna in the complainant''s evidence and therefore the discretionary power u/s 391 of the Cr.P.C. could not be exercised in favour of the complainant.
6. There is no dispute that the said application for production of the agreement dated 11.5.02 was filed only after the point of limitation was argued before the Learned First Appellate Court and the matter was fixed for Judgment as can be seen from para 9 of the Judgment of the Learned Additional Sessions Judge. The complainant did not challenge the said order dated 20.6.07 on complainant''s application dated 23.2.07, but, Learned Counsel on behalf of the complainant submits that the said order has been challenged in the present appeal.
7. Be that as it may, and without going into the merits of the said submission whether the said order could be challenged in this appeal, the fact remains that the complainant had ample opportunities to produce the said agreement dated 11.5.02 not only when he was required on 22.11.04 to produce all the evidence he had but also subsequently the said agreement could have been produced in cross-examination of the accused. On behalf of the accused the genuineness of the said agreement was disputed and in my view, the Learned Additional Sessions Judge, in the circumstances of the case, could not be faulted in disallowing the said application dated 23.2.07.
8. The accused has been acquitted on various grounds and one of them, being that Rs. 11,00,000/- alleged to have been advanced by the complainant to the accused, having been advanced, in November/December, 1997 the subject cheques were issued in August, 2004 after the debt had become time barred and being so, in terms of explanation to section 138 of the Act the debt was not recoverable. Infact the Learned Additional Sessions Judge has come to the said conclusion after relying on two judgments of this Court, namely, Smt. Ashwini Satish Bhat v. Jeevan Lolienkar 1999 (1) G L.T. 408 which was followed in the case of Inacio Lourenco v. Oscar D''Souza, decided on 16.3.2006 in Criminal Miscellaneous Application No. 253 of 2005.
9. Shri D''Souza, the Learned Counsel appearing on behalf of the complainant submits that the date for the cause of action to file the suit would have been from the date when the accused failed to deliver the flats agreed to be delivered or the money on account of the same which was paid to the accused. Nevertheless, Learned Counsel, fairly concedes, that such date cannot be borne out from the evidence of the complainant. The respondent/accused herein was also the respondent in the case decided by this Court on 16.3.06 in Criminal Miscellaneous Application No. 253 of 2005. The complainant did not produce the first agreement pursuant to which he had paid Rs. 11,00,000/- to the accused on the specious plea that the accused had taken it at the time when the accused handed over the subject cheques to the complainant. It is extremely difficult to accept that the complainant who is a businessman would have parted with an agreement under which he had paid Rs. 11,00,000/- and was to get two flats in exchange for cheques worth Rupees only 5,00,000/-. Adverse inference therefore, was required to be drawn against the complainant for non production of the said agreement.
10. Be that as it may, the complainant''s own evidence shows that the money was allegedly given by the complainant in November/December, 1997, while the subject cheques were given in part repayment of the same in August, 2004. The subject cheques were therefore given towards a debt which could not have been recovered, the same having been time barred. Although the accused had examined himself and offered for cross-examination, no admissions favourable to the case of the complainant were obtained from him.
11. The view arrived at by the Learned First Appellate Court that the subject cheques were given towards time barred debt cannot be faulted. Shri D''Souza has placed reliance on
12. Appeal dismissed.
