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Judgment
Rajendra Badamikar, J
This appeal is filed by the appellant/complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), challenging the judgment of acquittal passed by XX Additional Chief Metropolitan Magistrate, Bengaluru City, in CC.No.4400/2014, dated 08.01.2020.
For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
The brief factual matrix leading to the case are as under:
The accused is known to complainant since several years and carrying business in the construction and development of properties. The complainant had sold 12 acres of land to the accused and said sale deed was duly registered in the sub-registrar office. It is also alleged that complainant had business transaction in connection with buying, selling and marketing properties. In this connection, the accused has issued a cheque bearing No.003326, dated 27.03.2013 for Rs.25,00,000/- drawn on Sri Thyagaraja Co-Operative Bank, Channasandra Branch, Uttarahalli, Bengaluru and when the said cheque was presented for encashment through his banker, the same was returned with an endorsement as “funds insufficient”. As per request of the accused, the complainant represented the said cheque again, but again it was returned for “funds insufficient”. Hence, he has issued a legal notice dated 12.06.2013 which was duly served and accused did not respond to the legal notice. Hence, complaint came to be lodged.
The learned Magistrate after recording the sworn statement and after appreciating the documentary evidence, has taken cognizance and issued process against the accused. Accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) is framed against accused and same is read over and explained to him. Accused pleaded not guilty and claimed to be tried.
To prove the guilt of the accused, the Managing Director i.e., complainant was examined as PW1 and he placed reliance on 12 documents marked at Ex.P1 to Ex.P12. After the conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against her in the case of the complainant. The case of accused is of total denial. The accused herself got examined as DW1 and she placed reliance on 15 documents marked at Ex.D1 to Ex.D15.
After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of the N.I. Act by exercising his powers under Section 255(1) of Cr.P.C. Being aggrieved by this judgment of acquittal, the complainant is before this court.
Heard the arguments advanced by the learned counsel for appellant as well as learned counsel for the respondent. Perused the records.
The learned counsel for appellant would contend that the cheque and signature have been admitted and presumption is in favour of the complainant. He would also contend that the learned Magistrate has failed to appreciate the oral and documentary evidence in proper perspective and sought for admitting the appeal by convicting the accused/respondent herein.
Per contra, the learned counsel for respondent would support the judgment of acquittal passed by the learned Magistrate.
It is the contention of the complainant that he is the owner of land and 12 acres was sold to accused and total extent of land was 17 acres and 13 guntas. There is no serious dispute of the fact that the complainant was owner of 17 acres and 13 guntas and he sold an extent of 9 acres in favour of accused and 3 acres in favour of other persons at the instance of accused and sale deed were executed. It is also an admitted fact that accused has already paid an amount of Rs.5,04,25,000/- including the consideration amount of Rs.81,00,000/-. Further, accused is required to pay Rs.15,50,000/- towards registration of 5 acres and 13 guntas of additional land.
It is the contention of the accused that complainant dodged the registration initially under the ground that same would be done after approval of layout and even after approval of layout, no sale deed has been executed in favour of the accused, but the complainant raised a demand of Rs.1,00,00,000/- in addition on the ground of escalation in prices. It is the specific contention of the accused that, towards the registration of 5 acres and 13 guntas he has issued blank cheques in the year 2009, but the same has been misused by creating a Memorandum of Understanding dated 22.09.2009.
The allegations of the complainant made in the complaint disclose that the disputed cheque was issued towards sale consideration of 12 acres of land purchased by her from the complainant. But in the cross-examination, PW1 admitted that the entire consideration pertaining to 12 acres of land is received and further admitted that regarding sale deed dated 27.12.2006 no amount is due. He further deposed that regarding 5 acres and 13 guntas no sale deed was yet executed, but complainant asserts that under Memorandum of Understanding accused is required to pay the amount.
All along, the allegations of the complaint and examination-in-chief disclose that this cheque was issued towards sale consideration, but admittedly, the entire sale consideration pertaining to 12 acres of land is already received by the complainant as admitted by PW1. Further, admittedly, regarding 5 acres and 17 guntas no sale deed was executed, but reliance was placed on Memorandum of Understanding. But a Memorandum of Understanding is required to be proved in a civil litigation and liability will be a civil liability. Further, when the sale deed itself is not executed, it cannot be termed as a legally enforceable debt and if there is any breach of conditions of agreement, it is open for the complainant to prosecute the accused before a Civil Court. Hence, it is evident that regarding sale there is no due to the complainant and regarding sale deed dated 27.12.2006, there is no legally enforceable debt. Apart from that, the remaining 5 acres and 13 guntas was not sold in favour of the accused and as such, the question to pay the said amount does not arise at all.
During the course of the evidence, PW1 tried to make out a case that sale deed pertaining to 5 acres and 17 guntas were executed in favour of different purchasers and the sale consideration was appropriated by the accused. But that was not the case made out by the complainant. Further, on perusal of memorandum of agreement-Ex.D1 it is evident that the complainant was required to execute a General Power of Attorney in favour of accused. But admittedly, till today, no power of attorney was executed in favour of accused to deal with the said property of 5 acres 17 guntas. Then the complainant is not certain as to on what basis he is enforcing the agreement and it appears that a civil litigation was tried to be given a criminal colour.
Apart from that, from Ex.D3 to Ex.D15 it is evident that both complainant and accused together sold some of the properties in favour of third purchasers and accused has developed them. In that context when it is a joint sale, question of accused paying the amount to the complainant does not arise at all. Admittedly, there are number of other civil disputes pending between the parties and they have no bearing on this transaction.
All along, it is the assertion of the complainant that cheque was issued on 27.03.2013, but PW1 in his cross-examination admitted that the cheque was issued in the year 2006. In that event, the transaction is clearly barred by law of limitation also. Admittedly, sale deed is executed in the year 2006 and as per admission given by PW1, cheque was issued in 2006 itself. In that event, the question of issuing cheque in 2013 does not arise and PW1 further admitted that from 2006 to 2014, no notice was issued or no correspondence was made regarding due under the cheque that clearly discloses that even if it is held to be a legally enforceable debt, it is barred by the law of limitation.
The complainant in the evidence tried to make out a different case and all along it is alleged in the complaint that the cheque was issued towards sale consideration of 2006, but PW1 himself has admitted that the entire consideration under the sale deed of 2006 is received. Now during the course of evidence, a different story tried to be invented regarding cheque being issued under Memorandum of Understanding but there is no such pleading in the complaint. The evidence lead by the complainant is inconsistent and contrary. The admissions given by PW1 completely destroys the case of the complainant.
The other interesting aspect is that admittedly, the transaction was between M/s.R.Arunachalam Properties Consultants and Promoters Pvt. Ltd., and accused. The complaint was not lodged by Arunachalam Properties, but it was filed by Managing Director disclosing his name and his designation as Managing Director. At no stretch of imagination, only on the basis of showing his designation it cannot be presumed that the complaint was on behalf of the Company. Even in the legal notice, the notice was issued on behalf of A.Ramesh Arun i.e., PW1 disclosing his status as Managing Director and notice was not issued on behalf of M/s R.Arunachalam Properties. Though authorization is produced but the complaint was filed in individual capacity. Even on this count also the complaint is liable to be dismissed.
The complainant has legally enforceable debt under failed to establish any Ex.P1-cheque and the complaint is also not filed by the Company and complaint should be in the name of Company represented by Managing Director but here it is vice versa. Looking to these facts and circumstances, it is evident that the complainant has not made out any prima facie case for admitting the matter. The learned Magistrate has appreciated the oral and documentary evidence in detail in accordance with law and has rightly acquitted the accused. No illegality or perversity is found in the judgment of acquittal. Hence, the appeal being devoid of any merits, does not survive for consideration and accordingly, it stands rejected.