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2023 DIGILAW 966 (KAR)

Ikram Siddiqui v. B. G. Omkaramurthy

2023-08-07

RAJENDRA BADAMIKAR

body2023
JUDGMENT 1. This revision petition is filed by the accused under Sec. 397 read with 401 of Cr.P.C., challenging the judgment of conviction and order of sentence dtd. 2/9/2013 passed by the II Additional Civil Judge and JMFC, Shivamogga in CC No.244/2009 and confirmed by the Presiding Officer, Fast Track Court, Shivamogga, in Criminal Appeal No.224/2013 vide judgment dtd. 27/8/2014. 2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are as under:- The complainant and accused jointly entered into a Memorandum of Understanding on 11/7/2007 and they have agreed to contribute equally towards consideration of the purchase of property. Accordingly, they have entered into an agreement and accused agreed to pay Rs.01.00 Crore 80 Lakhs and the complainant had agreed to Rs.20.00 Lakhs and over all Rs.43.00 Crore payable. In the balance amount of Rs.43.00 Crore payable, the accused had agreed to pay Rs.20.00 Crore and Rs.70.00 Lakhs and the complainant had agreed to pay Rs.22.00 Crore and 30 Lakhs. Then, the complainant and accused have jointly entered into Memorandum of Understanding with one Anil Kumar M.N. for purchase of property measuring 73.65 acres at Mandya National Paper Mill Housing Colony at Hulikere Village, Belagola Hobli, Srirangapatna Taluk, Mandya District, which is acquired by the said Anil Kumar through successful bidding in Court auction. The consideration for purchase of the said property was fixed at Rs.45.00 Crore as per the Memorandum of Understanding dtd. 11/7/2007. Both accused and complainant have agreed to contribute equally towards consideration and on signing the agreement, the accused agreed to pay Rs.01.00 Crore 80 Lakhs and the complainant agreed to pay Rs.20.00 Lakhs. In the balance amount of Rs.43.00 Crore payable, the accused had agreed to pay Rs.20.00 Crore 70 Lakhs and the complainant had agreed to pay of Rs.22.00 Crore 30 Lakhs. Towards initial commitment of Rs.02.00 Crore payable together by the complainant and accused, the accused had given two cheques for Rs.90.00 Lakhs, which was drawn on Indusind Bank, Mysuru Branch dtd. 11/7/2007. The complainant had issued cheques for Rs.10.00 Lakhs dtd. 11/7/2007. The cheques issued by the accused were dishonoured for want of sufficient funds and the cheques issued by the complainant were honoured. 11/7/2007. The complainant had issued cheques for Rs.10.00 Lakhs dtd. 11/7/2007. The cheques issued by the accused were dishonoured for want of sufficient funds and the cheques issued by the complainant were honoured. Due to failure on the part of the accused to pay advance, the said Anil Kumar has cancelled the purchase agreement and issued notice of cancellation of Memorandum of Understanding. The complainant by alleging the breach of contract, claimed liquidated damages of Rs.05.00 Crores from the accused for his failure. But, mutual settlement in the presence of mediators was finally arrived and in the said settlement, the accused has agreed to pay Rs.01.00 Crore 60 Lakhs as liquidated damages to the complainant. A written settlement deed was executed by the accused along with his wife Mrs. Zeba Nazar on 12/7/2008. It is further asserted that the liquidated damages of Rs.01.00 Crore 60 lakhs was agreed to be paid by the accused by way of 13 cheques of which, 11 cheques of Rs.10.00 Lakhs each and two cheques of Rs.25.00 Lakhs each. Accordingly, the accused has issued cheques in pursuance of the Memorandum of Understanding and the complainant has presented one of the cheques ie., the present cheque in this case and the same was bounced for Insufficient Funds. Then the complainant has also issued a legal notice and the notice sent through registered post returned with an endorsement 'Intimation Delivered, Not claimed'. But, the notice sent to the other address of the accused was duly served. Since, the said cheque amount was not paid, the complaint came to be lodged. The learned Magistrate has taken cognizance of the offence and issued process against the accused. Thereafter, the accused has appeared and enlarged on bail. The accused has also denied accusation. 4. Subsequently, after conclusion of the trial, the learned Magistrate has convicted the accused for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 ('N.I Act, for short) and sentenced him to pay fine of Rs.10.00 Lakhs. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the Fast Track Court, Shivamogga, in Criminal Appeal No.224/2013. The learned Sessions Judge, after re-appreciating the oral and documentary evidence, has dismissed the appeal. Being aggrieved by these concurrent findings, this revision is filed. 5. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the Fast Track Court, Shivamogga, in Criminal Appeal No.224/2013. The learned Sessions Judge, after re-appreciating the oral and documentary evidence, has dismissed the appeal. Being aggrieved by these concurrent findings, this revision is filed. 5. Heard the arguments advanced by the learned counsel for the revision petitioner and the learned counsel for the respondent. Perused the records. 6. Learned counsel for the revision petitioner would contend that the settlement in respect of liquidated damages, cannot be ascertained and it cannot be termed as legally enforceable debt. Hence, he would claim that the entire approach of both the courts below is not in accordance with law. Hence, he sought for interference of this Court. 7. Per contra, the learned counsel for the respondent/complainant would contend that, the cheques were issued in pursuance of Memorandum of Settlement Deed between the parties dtd. 12/7/2008. He would contend that the complainant has already parted-out Rs.20.00 Lakhs and after due negotiations, the Memorandum of Settlement was entered and in part performance cheques were issued, which falls within the definition of legally enforceable debt. Hence, he would seek for dismissal of the revision petition. 8. Having heard the arguments and perusing the records, now the following point would arise for my consideration:- "Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court, are perverse, arbitrary and illegal so as to call for any interference?" 9. There is no dispute that the cheque under Ex.P1 belongs to the accused and it bears his signature. The evidence also clearly disclose that there was Memorandum of Agreement between the complainant and the accused as one party with one Mr. M.N. Anil Kumar, on 11/7/2007. It is also an admitted fact that, in pursuance of the Memorandum of Agreement, the complainant had paid Rs.20.00 Lakhs. But, the accused failed to pay his part of amount, which has resulted in cancellation of Memorandum of Agreement by said Sri. M.N. Anil Kumar. It is also an admitted fact that, subsequently between the accused and the complainant, a Settlement Deed was executed on 12/7/2008, which is marked as Ex.P16, and the Memorandum of Understanding is at Ex.P15. The cheques were issued as per clause of the Settlement Deed under Ex.P16. M.N. Anil Kumar. It is also an admitted fact that, subsequently between the accused and the complainant, a Settlement Deed was executed on 12/7/2008, which is marked as Ex.P16, and the Memorandum of Understanding is at Ex.P15. The cheques were issued as per clause of the Settlement Deed under Ex.P16. It is not the case of accused that, Settlement Deed is obtained by way of fraud or misrepresentation. He has never challenged the Settlement Deed and the cheques were issued as per the terms and conditions of the Settlement Deed. When cheques were issued in pursuance of the Settlement Deed, question of accused disputing the legally enforceable debt does not arise at all. 10. Ex.P14, which is a copy of judgment in OS No.64/2010 also clearly discloses that, regarding other conditions of the Settlement Deed, the complainant has filed a Civil Suit for Rs.25.00 Lakhs and the same was also decreed. Hence, it is evident that the Settlement Deed is acted upon and whatever the liquidated damages quantified under Ex.P16 are to be treated as legally enforceable debt. Admittedly, the cheque is bounced for Insufficient Funds and accused has not at all taken any steps regarding Settlement Deed. Even his 313 Cr.P.C statement is silent and he has not led any defence evidence. Even during the evidence, the Settlement Deed is admitted. The accused did not explain anything and hence, the initial presumption under Sec. 139 of N.I. Act is in favour of the complainant and as such, the accused has failed to rebut the said presumption available in favour of the complainant. Both the courts below have appreciated the oral as well as documentary evidence in detail and have rightly convicted the accused. No perversity or illegality is found in the judgment of conviction and order of sentence passed by both the courts below. Under such circumstances, question of interference in the said judgment of conviction and order of sentence does not arise at all. As such the point under consideration is answered in the negative and accordingly, I proceed to pass the following:- ORDER i) The petition stands dismissed. ii) The judgment of conviction and order of sentence dtd. 2/9/2013 passed by the II Additional Civil Judge and JMFC, Shivamogga in CC No.244/2009 and confirmed by the learned Presiding Officer, FTC, Shivamogga, in Criminal Appeal No.224/2013 vide judgment dtd. 27/8/2014, stand confirmed for payment to complainant. ii) The judgment of conviction and order of sentence dtd. 2/9/2013 passed by the II Additional Civil Judge and JMFC, Shivamogga in CC No.244/2009 and confirmed by the learned Presiding Officer, FTC, Shivamogga, in Criminal Appeal No.224/2013 vide judgment dtd. 27/8/2014, stand confirmed for payment to complainant. iii) The bail bonds executed by the accused stand cancelled. iv) The amount if any deposited by the accused/revision petitioner before this Court shall be transmitted to the trial Court, for payment to the complainant. v) The Registry is directed to send back the original records to the concerned trial Court along with a copy of this order, with a direction to secure the presence of the accused to recover the fine amount or else to serve the default sentence.