TaxTMI 
TaxTMI 
2022 (6) TMI 607
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....istrate, First Class, 'D' Court, Panaji, is aggrieved by the dismissal of his complaint and acquittal of the respondent no.1 of the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act" for short). 2. The allegation in the complaint was that the respondent-accused and his wife falsely represented the complainant that they were the absolute owners and possessors of the land bearing Survey No.16/8, admeasuring 2365 sq. mts. of Village Nachinola and induced them to purchase the same. Accordingly, on 04.09.2010, an agreement to purchase the said land was executed and as a part of consideration, an amount of 25,00,000/- was paid to the Rs. accused and his wife. Thereafter, the accus....
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....ent dated 04.09.2010 was not denied nor the fact of receipt of the amount of Rs.25,00,000/-. The fact of issuance of statutory notice and receipt of the same by the accused was also not denied. It was suggested in the cross examination of the complainant that the accused had given a blank cheque but it was as a security and not to meet any legal liability and that the money was given as loan. As such, the accused had admitted his signature on the cheque and the execution of the cheque. Therefore, the presumptions under Sections 118 and 139 of the Act were attracted. Merely suggesting to the complainant that the cheque was given as security is not sufficient to rebut the statutory presumption which is in favour of the complainant. The agreem....
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....lant in his personal capacity and nowhere in the cause title or in the complaint he had stated that he is the sole proprietor of Zenith Constructions nor any documentary evidence was brought on record to show that the complainant in fact was the sole proprietor of Zenith Constructions. Section 142 of the Act provides that the complaint under Section 138 can be filed by the payee or the holder of the cheque in due course. In the instant case, according to Mr. Kantak, the learned Senior Counsel, it is evident that "Zenith Constructions", was the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he had established that he was the sole proprietor of the said concern and there....
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....case is produced at exh 18. The cheque is drawn in the name of Zenith Constructions. However the complaint is filed by Mahesh Revankar in his personal capacity and nowhere in the cause tile or in the complaint has he stated that the complaint is filed by him as the sole proprietor of Zenith Constructions. 24. As the cheque in the present case is drawn in favour of Zenith Constructions the complaint ought to have been filed by the complainant as the proprietor of Zenith Constructions or Zenith Constructions represented by the complainant which is not done and the complaint is filed by the complainant in his personal capacity when he in his personal capacity is not the payee or holder in due course and only his proprietary concern ca....
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....nch sole proprietary concern of 15,00,000/- me" (sic) 10. Mr. S.D. Lotlikar, the learned Senior Counsel appearing on behalf of the complainant-appellant, pointed out that in the agreement dated 04.09.2010 executed between the accused, his wife and the complainant, it was specifically mentioned that the complainant was carrying on business as a builder and developer in the name and style of his sole proprietary concern M/s Zenith Constructions. Similarly, in the statutory notice issued by the complainant to the accused, it was specifically mentioned that the complainant was the sole proprietor of M/s Zenith Constructions. It is also pointed out that the accused did not reply to the said notice. In the cross examination of the complainant, i....