Sri A.S. Prasad vs Sri Hari

Budihal R.B., J. - This petition is preferred by the petitioner/accused challenging the legality and correctness of the judgment and order dated 09.01.2015 passed by the XVI Addl. Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.12563/2011 and also the judgment and order dated 09.07.2015 passed by the LVI Addl. City Civil and Sessions Judge, Bengaluru City, in Crl.A.145/2015.

Brief facts leading to filing of the case by the complainant before the trial Court are that the complainant and the accused are known to each other. The accused along with his parents entered into a sale agreement dated 19.01.2009 in respect of sale of 4.25 acres of land for sale consideration of Rs.20,64,375/- and took advance amount of Rs.5,50,000/- on 19.01.2009 and Rs.2,00,000/- through cheque on 24.01.2009, Rs.4,50,000/- on 12.03.2009 and Rs.2,00,000/- on 30.10.2009, so in all, Rs.14,00,000/- was collected by the accused and his parents as advance amount out of sale consideration. After completion of stipulated time, accused and his parents failed to register the sale deed in favour of the complainant because of difference of opinion in their family and the accused got issued cheque bearing No.771732 dated 10.12.2010 for a sum of Rs.7,00,000/- and another cheque bearing No.771733 dated 10.12.2010 for Rs.7,00,000/- both the cheques were drawn on Canara Bank, BSK III Stage Branch, Bengaluru, in favour of the complainant. When complainant presented those two cheques for encashment through his banker Corporation Bank, Basavanagudi Branch, Bengaluru, same came to be dishonoured with an endorsement ''Account Inoperative/Dormant'' as per the bank endorsement dated 11.01.2011. Thereafter, complainant got issued legal notice to the accused through RPAD as well as UCP on 17.01.2011, and the notice sent through RPAD was returned with a shara I/D not claimed, but the notice sent through UCP is deemed to be served and in spite of that, accused neither paid the cheque amount nor replied the notice. The accused knowing fully well and with an intention to cheat the complainant had issued the said cheque towards the repayment of sale consideration amount borrowed by him and thereby the accused has committed the offence punishable under Section 138 of N.I. Act.

Thereafter, the evidence on both sides have been recorded. The complainant examined himself as P.W.1 and produced 10 documents marked as Exs.P-1 to P-10. On the side of accused, three witnesses were examined as D.Ws.1 to 3 and documents Exs.D-1 to D- 7 got marked. As per the defence set-up by the accused, he denied the transaction of agreement of sale, but according to his contention, it was a loan transaction and both the cheques were issued as security for the said loan transaction. Hence, he denied the allegations made in the complaint. After concluding the trial and perusing the oral as well as documentary evidence produced in the case, ultimately the trial Court held that the petitioner is guilty of the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.18,00,000/- (Rupees Eighteen Lakhs only) and in default, he shall undergo Simple Imprisonment for one year.

Being aggrieved by the judgment and order of conviction passed by the trial Court, petitioner preferred an appeal before the first appellate Court in Crl.A.No.145/2015. The first appellate Court also after re-appreciating the materials placed before it, dismissed the appeal and confirmed the judgment and order passed by the trial Court holding that there is no illegality committed by the trial Court in coming to such conclusion. Being aggrieved by the judgment and order passed by the Courts below, the revision petitioner is before this Court.

Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned counsel appearing for the respondent/complainant.

Learned counsel for the petitioner/accused during the course of his arguments has submitted that though this proceeding is a revision petition but certain important material aspects though canvassed before the Courts below, they were not considered and appreciated properly and hence, there is illegality. Therefore, he has submitted that those aspects can be looked into by this Court in this petition. Though it is the contention of the respondent/complainant that in respect of the agreement of sale transaction the revision petitioner/accused along with his parents received amount on different dates, which is totalling to Rs.14,00,000/-, but the learned counsel for the petitioner has seriously canvassed about the payment dated 30.10.2009 for an amount is of Rs.2,00,000/- as per the averments in the complaint. The complainant has made the statement that on 30.10.2009, he paid an amount of Rs.2,00,000/- by way of cheque. He has also submitted that looking to the oral evidence of P.W.1 there is a clear admission that on 30.10.2009 he has not paid an amount of Rs.2,00,000/- but it is stated by the complainant that the said cheque is in respect of the amount which the accused has received on 16.04.2009. Hence, he has contended that this itself shows that sofar as payment of Rs.2,00,000/- on 30.10.2009 is concerned, there is no supporting evidence or the material and in spite of that both the Courts below ignored the said aspect and wrongly came to the conclusion that even the amount of Rs.2,00,000/- was paid by the complainant on 30.10.2009, which is patently illegal.

He has also submitted that though the admitted case of the complainant as per the complaint averments and the evidence is for Rs.14,00,000/- and though it is his case that cheques were also issued for an amount of Rs.14,00,000/- i.e., two cheques for Rs.7,00,000/- each, but the trial Court while passing the judgment held that even earlier to this transaction also the complainant paid the amount nearly of Rs.4,00,000/- to the accused person and the accused person is liable to pay the said amount also to the complainant. Hence, he has submitted that the judgment and order of the trial Court and the fine for an amount of Rs.18,00,000/- clearly shows that sofar as extra sum of Rs.4,00,000/- is concerned, the trial Court traveled beyond the case and the relief claimed by the parties. He has fairly submitted that sofar as Rs.12,00,000/- is concerned, though they have raised various contentions, same were negatived by both the Courts below and hence, the petitioner/accused is prepared to pay a sum of Rs.12,00,000/-, which is established with supporting material. Hence, to correct the said illegality in the judgment and order of the Courts below, he has submitted that petition be allowed and the judgment and order of the Courts below be set-aside.

Per contra, learned counsel appearing for respondent/complainant during the course of his arguments has submitted that, the contentions and the submissions made by the learned counsel for the other side sofar as the last item of Rs.2,00,000/- dated 30.10.2009 is not correct. He has also submitted that even a sum of Rs.2,00,000/- has also been paid by the complainant to the accused and it has been rightly appreciated by the Courts below. He has also submitted that sofar as the amount of Rs.1,50,000/- in connection with the last item i.e., the payment dated 30.10.2009, it appeared in the statement of accounts issued by the Bank. He has submitted that unless and until it is paid to the accused by the complainant, there is no possibility of the said entry appearing in the statement of accounts issued by the Bank. But sofar as another amount of Rs.50,000/- is concerned, there is no such supporting material, but regarding the sum of Rs.1,50,000/- there is satisfactory material produced by the complainant. Hence, when the cheques have been issued by the accused and signature is admitted and the amount of the cheque is for Rs.7,00,000/- each, this itself clearly shows that there was a due amount of Rs.14,00,000/- by the accused to the complainant. He has further submitted that when there are concurrent findings by the Courts below, this Court in this revision petition cannot look into all these aspects and there is no merit in this petition, hence, submitted to dismiss the petition.

I have perused the grounds urged in the petition, judgment and order of conviction passed by the trial Court, which is confirmed by the first appellate Court.

Looking to the submissions made by the learned counsel on both sides at the Bar, the serious dispute is with regard to the last item i.e., payment of Rs.2,00,000/- dated 30.10.2009. It is no doubt true, there is entry in Ex.P-10 endorsement about the payment of Rs.2,00,000/- also. But looking to the oral evidence of P.W.1, during the course of cross- examination, he has clearly stated that Rs.2,00,000/- was not paid on 30.10.2009, but it is his say that on 16.04.2009 an amount of Rs.1,50,000/- was paid and as submitted by the learned counsel for the respondent/complainant that sofar as Rs.1,50,000/- is concerned there is supporting material, there is statement of accounts issued by the Bank. Therefore, there may be some confusion with regard to date of payment of Rs.1,50,000/- is concerned and there is no confusion with regard to the other payments i.e., for Rs.5,50,000/- dated 19.01.2009, Rs.2,00,000/- dated 24.01.2009, Rs.4,50,000/- dated 12.03.2009.

Looking to the judgment and order passed by the Courts below, both the Courts below have taken all the materials i.e., both oral and documentary, into consideration and confirmed that there is payment of said amount on three different dates. Therefore, with regard to last item of Rs.2,00,000/- is concerned, the material on record clearly shows that an amount of Rs.1,50,000/- was paid by the complainant to the accused person, but for the remaining amount of Rs.50,000/- there is no supporting material placed on record. Therefore, the total amount comes to Rs.13,50,000/-. Sofar as the observation of the trial Court in its judgment that even earlier to the agreement of sale transaction, the complainant paid some amount to the accused and imposing punishment and the sentence to pay fine of Rs.18,00,000/- is concerned, it is not correct, why because, it is the case of the complainant himself as per the complaint averments that the due amount was Rs.14,00,000/- and it is not his case that accused was due for Rs.18,00,000/-. When there being no supporting material and even without case being made out by the complainant, the trial Court itself presumed about the extra amount of Rs.4,00,000/- and wrongly passed the judgment even for said Rs.4,00,000/-.

Looking to the entire materials placed on record, petitioner is able to establish that he was due of Rs.13,50,000/-. Hence, petition is partly allowed. The judgment and order passed by the trial Court, which is confirmed by the first appellate Court, is modified holding that accused is liable to pay Rs.13,50,000/- and not a sum of Rs.18,00,000/-.

With the above modification, rest of the judgment and order passed by the Courts below is confirmed.