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TMI Blog2008 (10) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Judicial Magistrate, First Class, Panaji in Criminal Case No. 200/OA/97/C.The parties shall, hereinafter, be referred to as per their status before the learned Magistrate. 2. The complainant filed above criminal case against the accused for dishonour of cheque of ₹ 3,20,000/- dated 13.08.1997 issued by the accused in favour of the complainant. It was the case of the complainant that on 04.01.1995, he had advanced the loan of ₹ 5 Lakhs to the accused repayable with interest @ ₹ 10,000/- per month per Lakh. According to the complainant, the accused had issued a cheque for ₹ 3,20,000/-towards part payment of the said loan amount. The complainant presented the cheque to the bank. The same was returned unpai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act. 3. The lower Appellate Court upon appreciation of the evidence led by the parties, held that the complainant had discharged the burden of proving that the amount of the cheque was not legally recoverable. It was further held that the complainant had failed to prove that he had given the loan of ₹ 5 Lakhs to the accused. It was also held that the complainant was a money lender and he had not obtained licence under the Goa Money Lenders Act, 2001. On these grounds, the lower Appellate Court acquitted the accused of the offence punishable under Section 138 of the Act. 4. Mr. D'Souza, learned Counsel appearing for the appellant/complainant submitted that the findings given by the lower Appellate Court, are contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etence of the accused to receive the loan amount. In support of his submissions, Mr. D'Souza relied upon the following judgments: (i) Vasudeo Ramchand Ahuja v. Vilas Shripati Kamble Anr., 2006 AMR 3203. (ii) Shri Wilson Fernandes v. Shri Nitin Pandurang Chodankar, 2004 (4) CCC 433 (Bom): 2004 (2) GLR 439. (iii) Prabhakar D. Naik v. Jerry S. Viegas Anr., 2002 BCR 623. (iv) Shree Hemant Pavel Gracias v. Shree Socorro Santan Fernandes, 2008 (1) CCC 743 (Bom): 2008 (1) CCC 977 (Bom) : 2007 AMR 3425. 5. Per contra, Mr. Dias, learned Counsel for the accused submitted that the Goa Money Lenders Act, 2001, is clearly attracted in the present case. In support of his submission, he placed reliance upon several provisions of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, Hyderabad v. Abida Sultana Anr., 2004 (2) DCR 1. 6. I have carefully considered the submissions made by the learned Counsel for the* parties and perused the record and judgments relied upon by the Counsel appearing for both the parties. 7. The main question which arises for consideration, is whether the cheque was issued by the accused for legally enforceable debt or liability and whether the complainant advanced the loan of ₹ 5 Lakhs to the accused on 04.01.1995. In order to answer this question, it would be appropriate to analyze the evidence led by the complainant. It is the case of the complainant that on 04.01.1995, he advanced the loan of ₹ 5 Lakhs to the accused. In his evidence, the complainant has stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n he was in Goa. The Caji had paid him an amount of ₹ 2.20 Lakhs on 05.01.1995. He further stated that he took the cash of ₹ 1 Lakh on the same day and paid the said amount by cash. He had borrowed ₹ 50,000/- from August D'Mello on the same day and thereafter all the amount of ₹ 5 Lakhs was handed over to the accused. In further cross-examination, the complainant admitted that besides the accused, he had given loans to other persons also. He admitted that in the same financial year, he claimed that he had given an advance of ₹ 15 Lakhs to M/s. Khan Realtors and there was dispute between him and M/s. Khan Realtors in respect of said amount of ₹ 15 Lakhs. 8. From the above evidence, it is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 04.01.1995. Moreover, August D'Mello and Mr. Caji from whom the complainant claimed to have borrowed ₹ 50,000/-, have not been examined. 9. Thus, close scrutiny of the evidence of the complainant himself, discloses that he has not been able to establish that on 04.01.1995, he had advanced the loan of ₹ 5 Lakhs to the accused. The other two witnesses examined by the complainant, are Branch Managers of the Bank and as such their evidence does not help the complainant to prove that he had advanced any loan to the accused. 10. The accused, who stepped in the witness box, has clearly denied that he had received any loan from the complainant. The document Exh. PWl/C which was brought on record during the cross-examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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