Partly allowed

Wilson Fernandes v. Shri. Nitin Pandurang Chodankar

Bombay HC5 Nov 2009CRIA/43/2009

Case brief

AI extract

What is this about?

The court set aside acquittals in four cheque-dishour cases to facilitate the reconstruction and cross-examination of a crucial defence witness whose evidence was available in earlier related cases but not presented before the trial court.

What did the court decide?

Impugned orders of acquittal set aside; parties directed to reconstruct evidence of DW2 Sharmila; witness directed to appear for cross-examination; trial court directed to pass appropriate orders afte

Wilson Fernandes Vs Shri. Nitin Pandurang Chodankar — Cheque Dishonour | Bombay HC (2009)

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL APPEAL NOS. 41/2009, 42/2009, 43/2009 AND

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44/2009.

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Wilson Fernandes, C/o Hotel Sunaina, Fatorda, Margao, Salcete, Goa.

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…....... Appellant.

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Versus

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1 Shri Nitin Pandurang Chodankar, Near Damodar Housing Society, Behind couri bungalow, Aquem, Alto Margao, Salcete, Goa.

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2 State of Goa, ( through …....... Respondent. P.P.)

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Mr. C. F. Coutinho, Advocate for the appellant.

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Mr. P. P. Singh, Advocate for the respondent no.1.

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CORAM :- U. D. SALVI, J. DATE : - 5 th NOVEMBER, 2009

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ORAL ORDER

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These appeals arise out of the orders of acquittal in criminal case nos. 534/N/99, 536/N/99, 537/N/99 and 541/N/99, passed by the IIIrd Additional Judicial Magistrate First Class at Margao on 22.10.2008.

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The aforesaid criminal cases were lodged upon the complaints made under section 138 of Negotiable Instruments Act. Briefly speaking, the complainant alleged that six cheques issued by

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the respondent no.1/accused towards the refund of the consideration agreed for the sale of flats were dishonoured and returned upon their presentation to the drawee bank and the payment due under the said cheques were not made despite the lawful demand made there for as per the provisions of section 138 of Negotiable Instruments Act.

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The aforesaid criminal cases pertain to four cheques out of 6 referred to herein above. Two more cases namely criminal case no. 533/N/99 and 535/N/99 were similarly lodged by the complainant in respect of alleged commission of an offence under section 138 of Negotiable Instruments Act arising out of dishonour of the balance two cheques. These cases were disposed of in the year 2002 and the accused was convicted in the said two cases. The accused preferred appeals to the Sessions Court, at Margao and could succeed in getting acquittals in both the said cases. Orders of acquittals passed by the Sessions Judge, Margao were further challenged by way of preferring appeals before this Court. Now, it is pointed out that this Court confirmed the orders of acquittal mainly for the reason of finding the defence taken by the accused in the said cases as probable. It is further pointed out that in said two cases the defence had examined the accused himself as well as his wife DW2 Sharmila, and this Court while appreciating the defence evidence had observed that the cross examination of the defence witnesses i.e accused DW1 and DW2 Sharmila was cryptic or inadequate to demolish the defence version

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regarding lack of enforceable debt or liability requiring issuance of cheque/s. Presently, it is submitted that two Special Leave Petitions are pending against the judgment passed by this Court confirming the orders of acquittals passed by the IIIrd Assistant Sessions Judge, South Goa Margoa.

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The impugned judgments in the present appeals reveal that only the evidence of the accused was available as defence version before the learned Trial Court and learned Trial Court recorded the findings of acquittal on such limited evidence despite the fact that the evidence of wife of the accused DW2 Sharmila in respect of common transaction at the back of all these cheques had seen the light of the day in earlier two cases namely Criminal case nos. 533/N/99 and 535/ N/99. It has been brought to the notice of the Court that an application was moved before the Trial Court to have before the trial Court the evidence of DW2 Sharmila previously recorded in the said two cases and the same could not be brought before the Trial Court as the records in those cases were not traced out.

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Admittedly there has been evidence of DW2 Sharmila on the material issue and the accused was willing to bring before the Trial Court the said evidence. Any judicial decision needs to be based on the complete evidence. It is therefore just and necessary that the evidence of DW2 Sharmila is considered by the Trial Court before

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passing any verdict as to the culpability of the accused.

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In order to facilitate resolution of the problem of getting the evidence of DW2 Sharmila recorded in case nos.533/N/99 and 535/ N/99 on record, in the cases wherein impugned Orders have been passed, the parties have agreed to reconstruct the evidence of DW2 Sharmila with mutual consent. It is submitted on behalf of the appellant/complainant that further opportunity to cross examine DW2 Sharmila be given as the cases in which evidence of DW2 Sharmila needs to be considered are separate cases and discovery of truth vis-avis those cases by means of further cross examination is necessary. This request for further cross examination of DW2 Sharmila is just and reasonable. In the result the following Order is passed.

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a. Impugned Orders passed in criminal case nos. 534/N/99, 536/N/99, 537/N/99 and 541/N/99 passed by the IIIrd Additional J. M. F.C. Margao dated 22.10.2008 acquitting the respondent/ accused no. 1 are set aside.

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b. Parties shall appear before the IIIrd Additional J. M. F.C. Margao on 17.11.2009 at about 2.30p.m and shall tender before the Trial Court mutually agreed reconstructed copies of evidence of DW2, Sharmila.

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c. DW2 Sharmila shall appear before the Trial

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Court on the appointed date and time and offer herself for further cross examination.

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d. Learned Trial Court shall upon considering the entire evidence including the evidence of DW1 accused i.e Nitin Chodankar, DW2 Sharmila Chodankar and hearing the parties shall pass the appropriate orders in accordance with law without being influenced by any of the observations made herein.

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U.D. SALVI, J.

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vn*

Wilson Fernandes v. Shri. Nitin Pandurang Chodankar

Case brief

What is this about?

What did the court decide?

Wilson Fernandes v. Shri. Nitin Pandurang Chodankar

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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