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2022 DIGILAW 416 (KAR)

Suneeta Sachin Rachanaikar v. M. Ramesha Naik

2022-03-28

K.NATARAJAN

body2022
JUDGMENT 1. This appeal is filed by the appellant complainant under Sec. 378(4) of Cr.P.C for setting aside the judgment of acquittal passed by the 22nd ACMM Bangalore in CC no. 5067/2014 dtd. 19/5/2015 for having acquitted the respondent for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 (herein referred as NI Act). 2. Heard the arguments of learned counsel for the appellant and respondent party-in-person. 3. The rank of the parties before the trial court is retained for convenience. 4. The case of the appellant complainant is that the accused approached the complainant for investing money on a site which is said to have been formed by BEML Co-operative society and the complainant agreed to purchase the site. The complainant has paid Rs.8.00 lakhs as hand loan by way of cheque No.495961 drawn on SBI and the same has been encashed by this accused on 14/2/2012 with a promise to repay the same. As on 14/2/2012, the accused approached the complainant and handed over copy of the receipt for Rs.3,66,000.00 and again approached on 12/5/2012 requested to handover the cheque for Rs.18.00 lakhs in the name of the accused so as to process the allotment of site in the name of the complainant. Accordingly, the complainant issued a cheque for Rs.18.00 lakhs vide cheque no.495964 drawn on SBI and also paid Rs.94,920.00by way of Demand Draft for registration expenditure and further amount Rs.17,100.00 and Rs.2,07,000.00 by cash towards the stamp duty and incidental charges. The accused brought one Ravi Kumar who is said to be secretary of said Society and got registered sale deed in the name of the complainant thereby the complainant came to know that the accused committed fraud and the said Ravi Kumar and Naryan Reddy were not the Chairman and Secretary of the Society. Therefore, demanded back the money of Rs.29,19,320.00 from the accused. The accused for the repayment of the same issued cheque bearing No.770889 for Rs.10.00 lakh, cheque No.777221 for Rs.9,19,000.00 another cheque No.770890 for Rs.10.00 lakhs dtd. Therefore, demanded back the money of Rs.29,19,320.00 from the accused. The accused for the repayment of the same issued cheque bearing No.770889 for Rs.10.00 lakh, cheque No.777221 for Rs.9,19,000.00 another cheque No.770890 for Rs.10.00 lakhs dtd. 10/8/2012 all the cheques are drawn on Thyagaraj Cooperative Bank Ltd. One cheque for Rs.10.00 lakh bearing No.770889 has been encashed and on further demand by the complainant, accused collected back cheque No.770890 for Rs.10.00 lakh and paid amount of Rs.4,50,000.00 by cash and issued another cheque for Rs.4.00lakh vide cheque no 833917 and paid Rs.1,50,000.00 by cash and another cheque 833917 of Rs.4.00 lakhs with an assurance that the cheque will be honoured. The complainant presented the cheque to her bank, the same was returned with endorsement "Funds insufficient" vide endorsement dtd. 6/12/2013. The accused has collected Rs.14,69,000.00 and issued the cheques which were dishonoured. Therefore notice was issued which was duly served on the accused and he has not replied. Hence, complaint came to be filed against the respondentaccused. 5. After appearance of the accused, plea was recorded. He has denied the charges. The complainant examined herself as PW1 and got marked 20 documents. The accused statement was recorded under Sec. 313 Cr.P.C. He has denied the incriminating evidence against him but not chosen to lead any defence evidence except marking Exs.D1 and D2. After hearing the arguments the trial Court found that the accused not guilty and acquitted vide impugned judgment, which is under Challenge. 6. Learned Counsel for the appellant has contended that the amount has been paid by the complainant to accused through cheques and the accused himself brought some person in the name of Secretary of the BEML Employees' Co-operative Society and got executed the sale deed in his favour and the said sale deed has been returned to the accused. The accused undertook to pay the money and accordingly, he had issued cheques towards recoverable debt. Therefore, the observation of the trial court that there is no legal recoverable debt, is not correct and the same is liable to be set aside. Hence, prayed for allowing the appeal. 7. The accused undertook to pay the money and accordingly, he had issued cheques towards recoverable debt. Therefore, the observation of the trial court that there is no legal recoverable debt, is not correct and the same is liable to be set aside. Hence, prayed for allowing the appeal. 7. Per contra, the respondent - party in person has contended that Ganganna, one of his friends, brought one Ravi Kumar and executed the sale deed in favour of the complainant as Secretary of BEML Employees' Cooperative Society and the amount was paid to the said Ravi Kumar and Ganganna. The said Ganganna had also given a cheque to the respondent which was dishonoured. A complaint under Sec. 138 of NI Act filed in C.C. No.9641/2013 was ended in conviction and the said Ganganna was ordered by the magistrate to pay Rs.1,19,50,000.00. The complainant has also filed a complaint to the CCB police where the said Ganganna was arrested and he was in judicial custody and the case is still pending. Therefore, he has contended that there is no amount payable by the respondent-accused to the complainant and there is no liability for payment of any debt by the respondent. Hence, prayed for dismissing the appeal. 8. Having heard the arguments of learned Counsel for the parties and perusal of the records, the points that arise for consideration in this appeal are as follows: (i) Whether the cheque issued by the respondent for discharging his debt, which was dishonoured, is legally an enforceable debt, and thereby committed an offence under Sec. 138 of NI Act. (ii) Whether the judgment of acquittal calls for any interference ? 9. On perusal of records, the complainant examined herself as P.W.1 and got marked 20 documents. Exs.P.1 to 3 are the cheques, Exs.P.4 to 6 are the endorsements, Exs.P.7 to 9 are the bank challans, Ex.P.10 is legal notice, Ex.P.11 to 13 are postal receipts, Exs.P.14 to 16 are the postal acknowledgements, Ex.P.17 is account statement, Ex.P.18 is the pass book, Ex.P.19 is FIR, complaint with final report and Ex.P.20 is the copy of the complaint. 10. The respondent, cross examining P.W.1, has not entered witness box but got marked two documents Exs.D.1 and 2 in the cross examination, which is nothing but an admitted document. 10. The respondent, cross examining P.W.1, has not entered witness box but got marked two documents Exs.D.1 and 2 in the cross examination, which is nothing but an admitted document. The clear case of the appellant-complainant is that she entered into sale agreement with the respondent-accused as the respondent-accused offered to sell a site belongs to BEML Society. Admittedly, the sale consideration has been received by the respondent accused. However, the sale deed was executed by one Ravi Kumar, who is said to be the Secretary of the BEML Society. The respondent though received money from the appellant-complainant through cheques, but in turn, he has paid the same to one Ganganna and the said Ravi Kumar. The sale deed was duly executed before the Sub Registrar. The appellant also paid miscellaneous expenditures including stamp duty. The respondent was one of the witnesses to the sale deed. That means, the sale consideration paid by the complainant for purchasing the site was rooted through the respondent and in fact, received by the said Ganganna through Ravi Kumar who is executor of the sale deed. The reference in this regard available in the sale deed is produced by the parties before this Court, wherein it was stated that the purchaser paid sale consideration to the vendor, the BEML Co-operative society represented by its Secretary, Ravi Kumar and it does not say that the said amount has been paid to the accused and then transferred to the vendor. However, it was an internal mutual adjustment between the complainant and the respondent for the purpose of purchasing the site. Subsequently, it appears that the said Ravi Kumar is not the Secretary of the BEML Society and he is falsely claiming himself as the Secretary and also that, no such site is available. Therefore, the complainant wants back the said sale consideration. Therefore, the respondent who was the middle man between Ravi Kumar and Ganganna in respect of the said sale transaction, has undertaken to pay the sale consideration and has issued a cheque. Issuance of cheque, signature on the cheque and issuance of notice are all not in dispute. 11. Therefore, the complainant wants back the said sale consideration. Therefore, the respondent who was the middle man between Ravi Kumar and Ganganna in respect of the said sale transaction, has undertaken to pay the sale consideration and has issued a cheque. Issuance of cheque, signature on the cheque and issuance of notice are all not in dispute. 11. As regards the liability which is legally recoverable from the respondent-accused in question, the respondent-accused has taken the contention that he came to know that the said Ravi Kumar is not the Secretary of the Society and his friend Ganganna has played fraud on him and therefore, he has filed a complaint to the CCB police for cheating, which was numbered as C.C. No.9641/2013. The said Ganganna also issued some cheques to the respondent-accused which also came to be dishonoured. The respondent filed complaint against him under Sec. 200 of Cr.P.C. read with Sec. 138 of N.I. Act. The said case in C.C. No.9641/2013 was ended in conviction and there was a direction to the said Ganganna to pay Rs.1,19,50,000.00 to this respondent as the said Ganganna undertaken to repay the amount and he is said to be in jail on the complaint filed by the respondent before the CCB police. 12. During cross examination, the respondent got marked documents as per Exs.D1 and 2, which reveal the complaint filed by the complainant against respondent for having purchased the site and payment made by her for the purpose of purchasing the site. The said complaint was filed by her to Rajarajeswarinagar police on 24/12/2015. Subsequently, there was an irrevocable agreement entered into between the respondent and the complainant in respect of the same site and the second party the respondent accused herein authorized the first party the appellant herein to prosecute and defend the lawful action, suits and claims, and to refer the matter to the arbitration. Condition No.3 of the agreement reveals that the first party in the complaint received Rs.29,19,000.00 as full and final settlement from the respondent by way of three cheques for Rs.10.00 lakhs each and Rs.9,19,000.00 and the complainant deposited the original title deeds to the respondent accused. Condition No.3 of the agreement reveals that the first party in the complaint received Rs.29,19,000.00 as full and final settlement from the respondent by way of three cheques for Rs.10.00 lakhs each and Rs.9,19,000.00 and the complainant deposited the original title deeds to the respondent accused. This document clearly shows that the respondent issued the cheques for discharging his liability for having received the amount in respect of site which was sold in the name of the complainant, even though the vendor has no title and it was a fraudulent sale deed. The trial Court has committed an error in accepting the contention of the respondent that, if any dispute arises, the matter should be referred to the arbitrator. Condition No.2 of the agreement authorizes only suit etc. and condition No.3 states terms for having paid money to the complainant by the respondent through cheques. The trial Court has misconceived the fact and the agreement entered into between the parties where the respondent has agreed to pay Rs.29.00 lakhs by way of settlement under irrevocable agreement as per Ex.D.2. 13. Apart from that, the respondent has already received cheques from Ganganna which were dishonoured, and therefore, he filed a complaint under Sec. 138 of the Act and the said case was ended in conviction. The judgment in the said case is produced by the respondent party-in-person, which is registered as C.C. No.9641/2013, wherein the Magistrate has directed Ganganna to pay Rs.1,19,50,000.00 as compensation to the complainant therein i.e. the respondent herein. In the said judgment, it is clearly revealed that the cheque was issued by the said Ganganna for having received money from the respondent for the purpose of executing the sale deed in favour of the complainant Sunitha and others. The respondent himself has stated in his complaint about execution of sale deed in the name of the complainant in respect of site No.81, and after the settlement, the accused received cheques for Rs.90,74,240.00 and he was succeeded in getting conviction against Ganganna and he is entitled to receive Rs.1,19,50,000.00. The respondent himself has stated in his complaint about execution of sale deed in the name of the complainant in respect of site No.81, and after the settlement, the accused received cheques for Rs.90,74,240.00 and he was succeeded in getting conviction against Ganganna and he is entitled to receive Rs.1,19,50,000.00. In other words, the amount received by the respondent from the complainant which was given to Ganganna, subsequently, he has received back the said amount by filing a complaint under Sec. 138 of Act, thereby it is the respondent accused has to discharge his debt payable to the complainant towards three cheques which were paid by him through Ex.D.2 the irrevocable agreement. 14. It is also an admitted fact that the respondent also filed a criminal case against Ganganna and others for having received money and for cheating so many people in the name of BEML Housing Society. Such being the case, the complainant discharged the initial burden of proving the debt or liability payable by the respondent in respect of the sale transaction and in view of the agreement Ex.D.2, the respondent given three cheques and one of the cheques was honoured and Rs.10.00 lakhs has been encashed by the complainant and another cheque for Rs.10.00 lakhs, he has taken back by paying cash of Rs.4,50,000.00 and issued other two cheques for Rs.1,50,000.00 and Rs.4.00 lakhs, which were dishonoured along with the cheque for Rs.9,19,000.00, totally Rs.14,69,000.00, those three cheques were dishonoured. Once the accused made part payment towards his discharge of liability and he cannot deny the remaining payment of Rs.14,69,000.00 for having issued three cheques. Therefore, I hold that the respondent has failed to rebut the presumption available in favour of the complainant and the trial Court under misconception of fact and the wrong conclusion, has acquitted the respondent on the ground that it is a civil dispute and they have to approach the arbitrator and thereby, the findings of the trial Court regarding acquitting the respondent requires to be interfered with. 15. Accordingly, the appeal is allowed. The judgment of acquittal passed by the trial Court in C.C *No.5067/2014 dtd. 19/5/2015 is hereby set aside. The respondent-accused is found guilty and convicted for the offence punishable under Sec. 138 of the Act. 15. Accordingly, the appeal is allowed. The judgment of acquittal passed by the trial Court in C.C *No.5067/2014 dtd. 19/5/2015 is hereby set aside. The respondent-accused is found guilty and convicted for the offence punishable under Sec. 138 of the Act. The respondent is sentenced to pay fine of Rs.16.00 lakhs and in default of payment of fine, he shall undergo simple imprisonment for one year. Out of the fine amount, Rs.15,75,000.00 is ordered to be given to the complainant as compensation under Sec. 357 of Cr.P.C. and remaining amount shall be paid to the State Exchequer. Office is directed to send back the trial Court records immediately and copy of this judgment to the trial Court for taking further action.