Indradanush Properties Pvt. Ltd. vs Sri. M.B. Shivaramegowda

K.N. Keshavanarayana, J.—This appeal filed u/s 378(4) of Cr.P.C. by the complainant is directed against the judgment and order dated 02.02.2009 passed by the XIX Additional CMM, Bangalore City, in CC No. 23377/2005 acquitting the respondent/accused of the offence for the offence punishable u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the ''N.I. Act'').

The case of the appellant/complainant was that the accused purchased a flat constructed by the complainant at Chikkasandra Village, Yeshwanthpur Hobli, Bangalore North Taluk, and agreed to pay the balance amount and for payment of the balance amount, he issued the cheque bearing No. 18287 dated 19.03.2005 drawn on Ashok Nagar Co-operative Bank Ltd, for Rs. 19,060/- in favour of the complainant and when the said cheque was presented for encashment, the same was returned un-paid with the Banker''s endorsement "Funds Insufficient" and in spite of service of notice, the respondent/accused failed to pay the amount, as such, he committed the offence punishable u/s under Section 138 of the Act.

Upon service of summons, the respondent/accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him and claimed to be tried. During trial, the complainant examined himself as PW.1 and got marked Exs. P1 to P11. The accused during his examination u/s 313 of Cr.P.C. denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence, the respondent/accused examined himself as DW.1 and produced Exs. D1 & D12.

The defence of the respondent/accused was that he was not due any amount to the complainant towards sale consideration of the flat purchased by him and that the cheque in question was not issued towards balance sale consideration. It was his further defence that the entire sale consideration for the sale of the flat bearing No. E5 as per the sale deed dated 13.09.2000 was paid, as acknowledged in the sale deed and subsequently, in the year 2003, he purchased two more flats bearing Nos. G6 and G7 in respect of which the complainant executed two sale deeds dated 23.04.2002 and 17.07.2003, wherein the receipt of the entire sale consideration has been acknowledged by the complainant, as such, he was not due any amount to the complainant towards sale consideration. It was his further defence that in the year 2003, while selling flats Nos. G6 and G7, the complainant had assured to get the electrification after obtaining approval from the concerned authorities and since, the complainant failed to do so, there were some clashes between him and the complainant and in that regard, a compromise was arrived at, wherein the complainant agreed to carry on changes pointed out by the accused and also to provide electrification and also two car parking space. At that time, as insisted by the complainant, he issued two cheques to the complainant for the said work and subsequently, the complainant failed to carry-out those works and demanded excess amount of Rs. 50,000/- and in that regard, once again, some clashes took place. At that juncture, the complainant colluded with the Peenya Police, by using money power, forcibly brought the accused to Peenya Police Station and forcibly obtained his signatures on a blank cheque and stamp papers. Thus, according to the accused, the cheque was not issued for discharge of any debt or liability due by him to the complainant, as such, he has not committed any offence u/s 138 of the Act.

The learned Magistrate on appreciation of oral and documentary evidence, by the judgment under appeal held that the defence of the accused is highly probable and acceptable and the complainant has failed to prove that the accused was due any amount towards the sale consideration agreed as per recitals in the sale deed and therefore, the cheque in question was not issued for discharge of any debt or liablity and therefore, the accused is not guilty of the offence u/s 138 of the Act. In that view of the matter, the learned Magistrate acquitted the accused. Being aggrieved by the said judgment and order of acquittal, the complainant has presented this appeal, on grant of special leave.

Upon service of notice of this appeal, the respondent/accused has appeared through his counsel. I have heard both sides and perused the judgment under appeal.

As could be seen from the specific case of the complainant, the accused issued the cheque in question for Rs. 19,060/- towards balance sale consideration in respect of the sale of the flat. Though in the cross-examination the complainant admits that the accused purchased three flats, one bearing No. E5 in the year 2000 and two flats bearing No. G6 and G7 in the year 2003, he is not specific as to in respect of which flat the accused was still due and in respect of which flat, the cheque in question was issued. Ultimately, in the evidence, the complainant has stated that the cheque in question was issued in respect of the sale of flat bearing No. E5. However, the learned Magistrate referring to the documents produced by the accused namely, the sale deed dated 13.09.2000 in respect of Flat No. E5, has noticed that the entire sale consideration of Rs. 3,51,000/- has been received by the complainant as per the recital in the sale deed. Therefore, the learned Magistrate has noticed that no part of the sale consideration was due to the complainant from the accused, as such, the question of the accused issuing cheque in question towards the balance sale consideration did not arise. In that view of the matter, the learned Magistrate observed that the whole case of the complainant is false and cannot be accepted.

There is no serious dispute that the complainant has executed the sale deed dated 13.09.2000 in respect of Flat No. E5. As per the recital of the sale deed, the consideration for the sale of the said flat was Rs. 3,51,000/- and the entire sale consideration had been received by the complainant before registration of the sale deed. If that is so, question of the accused issuing cheque in question on 19.03.2005 for Rs. 19,060/- towards sale consideration certainly did not arise. It is pertinent to note that subsequently in the year 2003, the accused has purchased two more flats from the very complainant, which is not seriously disputed by the complainant. The sale deeds in respect of those 2 flats are also produced and as per those sale deeds, the entire sale consideration agreed has been received by the complainant from the purchaser and no part of the sale consideration was due. If really the accused was due any amount towards the sale of the flat No. E5 sold in the year 2000, certainly, the complainant would not have kept quiet while executing the sale deed in respect of Flats bearing Nos. G6 and G7 in the year 2003. Under these circumstances, the learned Magistrate is justified in holding that the defence of the accused as to under what circumstances the cheque in question came to be issued deserves to be accepted. There is no error committed by the learned Magistrate in accepting the defence of the accused and in holding that the accused is not guilty of the offence and the complainant has tailed in prove the guilt of the accused. In view of the fact that the complainant has failed to establish that the accused was due any amount to him, the question of drawing presumption u/s 139 of the Act did not arise. In this view of the matter, the judgment under appeal does not suffer from any illegality or irregularity. The judgment of the learned Magistrate is in accordance with the well-settled principles of law and the evidence on record, as such, there is no perversity in the judgment of the learned Magistrate, It is now well-settled law that the Appellate Court siting in appeal, should not lightly interfere with the judgment of acquittal unless it is shown that the judgment is perverse or contrary to the evidence or material evidence has been omitted from consideration. Learned Counsel for the appellant is not in a position to point out any perversity in the judgment of the Court below nor is able to show that the learned Magistrate has omitted to consider any material evidence on record. In this view of the matter, I find no merit in this appeal.

Accordingly, the appeal is dismissed.