Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 1046 (JHR)

Shri Amulya Kumar Singh v. State of Jharkhand

2011-11-25

H.C.MISHRA

body2011
JUDGMENT By Court.- Heard learned counsel for the appellant and learned A. P. P. for the O.P. State. No one appeared for the private O.P. No.2, even though, notice was issued to the said O.P., which has been validly served. The O.P. No. 2 has not even filed her appearance in this Court. As such learned counsel Shri Jai Shankar Tiwary, who had appeared for her at the time of Special Leave to Appeal, was asked whether- he would accept notice for O.P: No.2, who after consulting the client declined to accept the same. 2. The appellant complainant filed the complaint in the Court of the Chief Judicial Magistrate, Ranchi, being complaint case No. 2012 of 2007 in which the present O.P. No.2 was made an accused in the capacity of Director of M/s. Varun Santi Home Pvt. Ltd. It is stated in the complaint petition that the said Varun Santi Home Pvt. Ltd., had entered into a development agreement with the complainant and his six brothers, who had inherited the entire estate of their father late Rabhubansh Kumar Singh after his death, for construction of an apartment over the said flat. Pursuant thereto, Ram Raj Apartment was constructed by Varun Santi Home Pvt. Ltd. on the said plot and flat Nos. 302 and 304 came into the possession of the complainant and it was handed over to the complainant by the builder in the year 2004. Thereafter flat No. 304 of the said apartment was sold by the complainant through the accused. Subsequently, the complainant again requested the builder through its Director, the O.P. No. 2, to sell his flat No. 302 as well, to which the builder agreed and after some time, the complainant was informed that one Mr. R.K. Sinha was interested in purchasing the flat. The builder also informed the complainant that the said Mr. Sinha had advanced the consideration amount of Rs. 12 lakhs and accordingly, sent three cheques to the complainant bearing cheque Nos. 274755. 274756 and 274757, each for the amount of Rs. 4.00.000/-and dated 28.9.2007, which were issued by the O.P. No.2. R.K. Sinha was interested in purchasing the flat. The builder also informed the complainant that the said Mr. Sinha had advanced the consideration amount of Rs. 12 lakhs and accordingly, sent three cheques to the complainant bearing cheque Nos. 274755. 274756 and 274757, each for the amount of Rs. 4.00.000/-and dated 28.9.2007, which were issued by the O.P. No.2. When the said cheques were deposited by the complainant in the Bank they were dishonoured by the Bank due to insufficient fund in the account of the drawer and after completing of the necessary legal requirements under the law, the said complaint was filed as the payment of the amount was not made to the complainant. 3. In course of trial, the evidences were adduced by both the sides and ultimately, the trail ended in the judgment of acquittal, which is impugned in this appeal. From the judgment passed by the Court below, it appears that so far as the legal requirements about the presentation of the cheques in the Bank within the prescribed time the information of the cheques being dishonoured by the Bank due to insufficient fund in the account of the drawer and notice of demand etc. are concerned they were found to be in order. However: the accused was acquitted as the Court below found that the ownership of I he property was never transferred and the title ownership and the possession of the said flat remained with the complainant himself. Accordingly, by the impugned judgment dated 6.8.2010, the Trial Court held that the complainant had not been able to prove his case and the necessary ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act were not satisfied. Accordingly, the accused (O.P. No. 2 herein) was not found guilty and was acquitted. 4. In the present appeal, it has been brought on record in that the said builder had actually, without the knowledge and consent of the complainant, already sold the property to a 3rd party viz. Shri Akhileshwar Prasad and Smt. Shanti Devi, through a registered sale-deed dated 28.12.2007, but this fact was never brought to the knowledge of the Court below and even the complainant was not informed ,about the said sale. Shri Akhileshwar Prasad and Smt. Shanti Devi, through a registered sale-deed dated 28.12.2007, but this fact was never brought to the knowledge of the Court below and even the complainant was not informed ,about the said sale. It has been stated in the supplementary affidavit through which the copy of the sale-deed has been brought on record that the O.P. No. 2 had cheated the appellant and without the knowledge of this appellant, his flat was sold by O.P. No.2. It is also stated in the supplementary affidavit that the appellant came to know about this sale after the judgment passed by the Court below. The said sale-deed has been brought on record as Annexure-3 the perusal of which shows that the sale-deed has been executed with respect to flat No. 302. Block-A of the same Ram Raj Apartment, and the name of vendor is shown as M/s Varun Shanti Home Pvt. Ltd. and the names of vendees are Shri Akhileshwar Prasad and Smt. Sangita Kumari. 5. Learned counsel for the appellant submitted that the appellant was not aware of the sale-deed and he had no knowledge about the fact that his flat was fraudulently and clandestinely been sold away by the builder to a 3rd party. Even during the trial this fact was not disclosed by the accused, As this fact was not within the knowledge of the appellant he also could not bring this fact to the knowledge of the Trail Court. 6. Learned counsel for the appellant has, thus, submitted that on the one hand. the accused had taken the plea in the Court below that no deed of transfer was executed with respect of the flat in question and she was acquitted solely on the ground that the possession of the flat still remained with the complainant himself on the other she had concealed the fact from the Court as well as from the appellant that she had already sold the flat to a 3rd person and thereby, she had misled the Court below by playing fraud upon the Court. 7. 7. Learned counsel for the appellant has placed reliance upon a decision of the Hon'ble Supreme Court of India in Eureka Forbes Ltd v. Allahabad Bank and others reported in (2010) 6 SCC 193 , wherein in para 66, it has been laid down that the maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that a person who by manipulation of a process frustrates the legal rights of others should not be permitted to take advantage of his wrong or manipulations Placing reliance on this ratio, learned counsel has submitted that it is a fit case for remand for fresh adjudication of the case, after giving an opportunity to the appellant to bring the necessary facts before the Trial Court by way of additional evidence. 8. Upon going through the record, I find that the appellant had proved in the Court below that the cheques were issued in his favour by the accused. They were also presented in the Bank within the prescribed time and• the same were dishonoured by the Bank due to insufficient fund in the account of the drawer. Thereafter, within time, notice of demand was given to the accused and when the accused did not pay back the amount, the complaint petition was filed within time, From the impugned Judgment also, it appears that the complainant was able to establish these facts in the Court below. The Court below has acquitted the accused (O.P. No.2 herein) holding as follows:- "From the materials available on record, I find that the ownership of the property was never transferred in favour of the accused or the proposed buyer, The title the ownership and possession thereof still lies with the complainant. At this point, I would like to mention para-4 of the complaint petition where the complainant admitted that he was in possession of flat No. 302, Further in examination-in-chief he has stated at para-2 that the possession of both the flats was taken by him, For the first time at para-18 of his cross-examination. I find that a new story was developed by the complainant that the possession of the flat was taken over by the accused. I find that a new story was developed by the complainant that the possession of the flat was taken over by the accused. It was never the case of the complainant that the possession of the flat was of the accused and he was dispossessed from his flat, More over assuming that the flats were in possession of the accused, then the complainant ought to have filed a civil suit before a Court of appropriate jurisdiction for dispossessing the accused from his flat, It may be a civil suit and his grievance could be redressed before, a Court of appropriate jurisdiction. This Court is not obliged to grant relief to the complainant if he was dispossessed from his flat under the trial for the charge under Section 138 of N.I. Act. I find that the property in the flat has not been transferred in favour of the accused and from the evidence it is clear that the title ownership and possession still lies with the complainant." 9. The aforesaid findings of the Court below are partly against the record partly against the law. as also appears to be given due to the fact that the Court below was misled by the accused due to fraudulent concealment of the fact that the flat in question was already sold by her to a 3rd party without the knowledge and consent of the appellant complainant. The aforesaid finding of the Court below is against the record because the statements of the complainant in para 4 of the complaint and para 2 of his deposition speak about his possession over the flats when the flats were handed over to him after the construction of the apartment by the builder. It was only a subsequent event that the complainant approached the builder for selling the flat and the entire trouble started thereafter but the Court below has misread the said statements to mean that even after the alleged transaction the complainant was asserting to be in the possession of the flat. The other finding given by the Court below that assuming that the flats were in possession of the accused. The other finding given by the Court below that assuming that the flats were in possession of the accused. then the complainant ought to have filed a civil suit before a Court of appropriate jurisdiction for dispossessing the accused from his flat as it may be a civil suit and his grievance could be redressed before a court of appropriate jurisdiction and that the Court was not obliged to grant relief to the complainant if he was dispossessed from his flat under the trial for the charge under Section 138 of N.I. Act, is against the law in as much as the proceeding under the Negotiable Instruments Act is an independent proceeding, which is not at all dependent on the adjudication of the rights of the parties in a civil suit. The Negotiable Instruments Act is a special Act containing provisions casting criminal liability on the drawer due to dishonour of the cheque in the given circumstances. 10. As the appellant complainant has been able to establish prima facie, that the accused was acquitted by the Court below due to the fraudulent concealment of the fact by the accused, that the flat in question was already sold by her to a 3rd party without the knowledge and consent of the appellant complainant. I find that the case is squarely covered by the ratio of the Hon'ble Apex Court in the case of Eureka Forbes Ltd. (supra). 11. In the aforesaid facts and circumstances, I am of the considered view that the impugned judgment of acquittal cannot be sustained in the eyes of law and it is a fit case to be remanded back to the Court below for fresh adjudication of the matter after affording an opportunity to the appellant complainant for bringing additional evidence if any, in accordance with law. 12. In view of the above discussions, the impugned judgment of acquittal dated 6.8.2010 passed by the learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 2012 of 2007/Trial No. 702 of 2010, is hereby, set-aside and the matter is remanded back to the Court below for fresh adjudication in accordance with law after affording an opportunity to the complainant to adduce additional evidence, if any. 13. This appeal is, accordingly, allowed with the above directions. Appeal allowed.