B.C. Ravikumar vs Shankara Murthy

N. Ananda, J.—There are concurrent findings of the courts below that petitioner (accused) has committed an offence punishable u/s 138 of the Negotiable Instruments Act. I have heard Sri. Sabarish Gandhi, learned counsel for petitioner (accused) and Sri. B. Pramod, learned counsel for respondent (complainant).

This court while exercising revisional jurisdiction u/s 401 Cr.P.C., does not sit as a court second appeal. This court can interfere with the impugned judgment if the courts below have committed glaring errors in appreciation of evidence or appreciation of law.

It is established from the evidence on record that accused had entered into an agreement of sale with one Manjula who had purchased certain extent of land for total consideration of Rs. 64 Lakhs and she had paid advance consideration of Rs. 10 Lakhs. This agreement of sale was entered into between the accused and Manjula on 09.03.2007.

On 08.05.2007, the petitioner assigned his rights and interest in favour of the complainant for consideration of Rs. 10 Lakhs. One of the essential terms of Deed of Assignment dated 08.05.2007 was that, petitioner had assured to get rectify the defects of title, if any, in relation to subject matter of sale and deed of agreement. In order to ensure the performance of such act, the petitioner had given two cheques for a sum of Rs. 10 Lakhs drawn in favour of the complainant. The petitioner failed to set right the defects of title and also make arrangement for transfer of properties by the original owner namely Manjula in favour of complainant in terms of agreement of sale dated 09.03.2007 and Deed of Assignment dated 08.05.2007. Therefore, the complainant presented the cheques and they were dishonored. The complainant caused legal notice and accused caused reply notice denying his liability.

The complainant initiated a complaint u/s 138 of the Negotiable Instruments Act. The learned trial judge on appreciation of evidence has held that accused had issued the cheques to discharge the legally recoverable liability, therefore, held the accused guilty of an offence punishable u/s 138 of the Negotiable Instruments Act and sentenced him to pay fine of Rs. 12,00,000/- and awarded compensation of Rs. 11,65,000/- to the complainant. Thereafter, the complainant was before the I-appellate court. The learned judge of the I-appellate court on reappreciation of evidence has confirmed the findings of the trial court.

Sri. Sabarish Gandhi, learned counsel for petitioner submits that cheques were not issued for consideration. The complainant had not called upon the accused to set right the defects and also make arrangement for transfer of properties by the original owner namely Manjula in favour of the complainant in terms of sale deed dated 09.03.2007 and Deed of Assignment dated 08.05.2007. Therefore, the complainant has failed to prove essential ingredients of an offence u/s 138 of the Negotiable Instruments Act.

Sri. B. Pradeep, learned counsel for responded (complainant) would submit that entire transaction has been admitted by the accused. It is also admitted by the accused that he had issued the cheques. The Deed of Assignment does not provide for issuance of notice by the complainant to the accused. The executory part of the contract had to be performed by the accused and the Deed of Assignment does stipulate issuance of notice to call upon the accused to perform his obligation.

On hearing learned counsel for parties and after going through the impugned judgment and on reconsideration of the matter, I find that the cheques in question were issued by the accused to the complainant to discharge legally recoverable liability viz., sale consideration which he had received for execution of Deed of Assignment dated 08.05.2007. The Deed of Assignment dated 08.05.2007 does not provide for issuance of notice, calling upon the accused to perform his obligation under the Deed of Assignment. The petitioner (accused) has failed to rebut the presumption available u/s 139 of the Negotiable Instruments act. Therefore, there are no reasons to interfere with the concurrent findings recorded by the courts below. The Revision Petition is dismissed.