@JUDGMENTTAG-ORDER
N. A. Britto, J.@mdashHeard Shri M. G. S. Khandeparkar, learned Counsel appearing on behalf of the Applicant. This Criminal Revision Application is directed against Judgment dated 10-8-2010 of the learned Additional Sessions Judge, Panaji by which the learned Additional Sessions Judge has dismissed the appeal filed by the applicant against his conviction and sentence imposed upon him by the learned J.M.F.C. by Judgment/Order dated 29-1-2010.
2. The applicant was prosecuted by the Respondent-Complainant u/s 138 of the Negotiable Instruments Act, 1881 for bouncing of a cheque dated 1-5-2008 for Rs.4,00,000/-.
3. The Complainant, besides the subject cheque, the notice and other relevant documents had also produced an agreement dated 1-3-2008 between the applicant-accused and the Complainant. The learned Magistrate with reference to this agreement observed that there was no challenge to the agreement, and as such it had to be concluded that the Complainant had advanced a sum of Rs.4,00,000/-to the accused. The learned Magistrate also referred to Clause 5 of the agreement which stipulates that in case the accused failed to pay the amount of Rs.4,00,000/-within the stipulated period of two months the accused would be liable to pay penal interest at the rate of 5% per month which stipulation was applicable only after 2-5-2008 i.e. after about a month of the date of the subject cheque. The plea that the Complainant was a money lender was taken up before the learned Magistrate and the learned Magistrate referred to the case of
4. The learned Additional Sessions Judge also referred to the case of M/s Armstrong Builders and Developers v. Mr. Vishwanath Naik(supra) and observed that the recitals in the said agreement between the applicant and the Respondent showed that although various amounts were advanced, they were advanced as one loan and the transaction was between only two parties. The learned Additional Sessions Judge further observed that it was not the case of the applicant-accused that the Complainant was advancing amounts to various persons by way of loans, and, therefore the transaction between the parties was a single transaction, and, therefore it would not attract the provisions of the Goa Money lenders Act, 2001.
5. Both the Courts below, on the basis of evidence produced by the Complainant have come to the conclusion that the applicant-accused is liable to be punished u/s 138 of the Negotiable Instruments Act, 1881.
6. Shri Khandeparkar, learned Counsel appearing on behalf of the applicant-accused refers to Clause 5 of the agreement dated 1-3-2008 executed between the parties and submits that both the parties had stipulated the payment of penal interest at 5% per month in case the sum of Rs.4,00,000/-was not paid within the stipulated period of two months. In other words, the said Clause stipulates that in case the amount was paid within two months it would not carry any interest. The stipulation appears to be penal in nature to ensure the payment within a period of two months. That in my view, would also not attract the provisions sof the Goa Money Lenders Act, 2001. Both the Courts below have given concurrent findings. There is absolutely no merit in this revision. Consequently, the same is hereby dismissed in limine.
