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2025 DIGILAW 2512 (MAD)

M. Nagaraj v. JR Housing Developers Pvt Ltd

2025-06-02

SATHI KUMAR SUKUMARA KURUP

body2025
JUDGMENT : SATHI KUMAR SUKUMARA KURUP, J. 1. This Criminal Appeal had been filed against the order of acquittal dated 27.06.2012 passed in S.T.C. No. 25 of 2011 on the file of the learned Judicial Magistrate, Fast Track Court at Hosur for the offence under 138 of the Negotiable Instruments Act . 2. The brief facts, which are relevant for consideration of this Criminal Appeal, are as follows: 2.1. The Complainant - Nagaraj is the father-in-law of Ramaiah. The dispute between the Complainant and the Accused is with regard to the sale of the property belonging to one Narasimhaiah, father of Ramaiah, a resident of Chimandahalli village, Jadigenahalli, Hosur. He owns a property to an extent of 2 acres 17 guntas which is his ancestral property. After the death of Narasimhaiah, the property devolved on his sons, Ramaiah, Narayanasamy and Srinivasan. 2.2. During the life time of Narasimhaiah, he entered into sale agreement with JR Housing Developers Private Limited Company, Accused-1. Accused-2 is Jagadeeswara Reddy, Managing Director of M/s. JR Housing Developers Private Limited. The Complainant/Nagaraj is the Power of Attorney Agent of Narasimhaiah. After his death, he was the Power of Attorney agent to the legal heirs of Narasimhaiah. Nagaraj claims that he, as Power of Attorney Agent, spent Rs.16,00,000/- for developing the agricultural lands into housing plots. He also claims to have entered into sale agreement with the Accused. In the course of the business transactions, the Accused had issued a cheque for Rs.8,00,000/- to the Complainant. While entering into sale agreement, it was agreed that 30% of the gain to be shared with the Complainant/Nagaraj and 70% with the legal heirs of Narasimhaiah. The Accused-2 in S.T.C. No. 25 of 2011 claimed that he is running a firm by name Shivapriya Developers and he had already entered into developing arrangements with Narasimhaiah during his lifetime. Subsequent to the death of Narasimhaiah in the year 2002, the second Accused in this case had entered into a settlement with Nagaraj by which a confirmation deed was executed. In the confirmation deed, the Complainant/Nagaraj agreed to help the Accused to sell the lands for which he will get the signatures of all the legal heirs of Narasimhaiah. On such promise, Rs.8,00,000/- was issued by way of cheque by the Accused. In the confirmation deed, the Complainant/Nagaraj had affixed his signature. In the confirmation deed, the Complainant/Nagaraj agreed to help the Accused to sell the lands for which he will get the signatures of all the legal heirs of Narasimhaiah. On such promise, Rs.8,00,000/- was issued by way of cheque by the Accused. In the confirmation deed, the Complainant/Nagaraj had affixed his signature. When the Complainant presented the cheque for Rs.8,00,000/- issued by second Accused in his bank on 22.01.2011, the Accused had issued notice to his Bank to stop payment directing his Bank not to issue money on presentation of the cheque. Therefore, the cheque presented by the Complainant/Nagaraj was returned with an endorsement “payment stopped by the drawer”. The attempt of the Complainant to contact the Accused-2 regarding the instructions given by him to his bank to stop payment could not be fructified. Therefore, the Complainant issued statutory notice directing him to settle the amount failing which he will be forced to file a complaint under Section 138 of the Negotiable Instruments Act . On receipt of the notice, the Accused had denied the contention of the Complainant in the statutory notice stating that the cheque was issued only to bring the legal heirs of late Narasimhaiah to affix their signatures in the confirmation deed towards settlement of the dispute between the Complainant and the Accused-2 in developing the lands into house plots and sale of the same. Since the Accused disputed the claim of the Complainant, the Complainant was forced to file a case under Section 138 of Negotiable Instruments Act . 2.3. The learned Judicial Magistrate, Fast Track Court (Magisterial Level), Hosur recorded the sworn statement of the Complainant and perused the documents filed along with the complaint. On being satisfied about the prima facie case made out by the Complainant, the complaint under Section 138 of the Negotiable Instruments Act was taken cognizance by the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur. Thereafter, summons were issued to the Accused-1 and 2 under section 204 of Cr.P.C along with copies of the complaint. 2.4. On appearance of the Accused and having furnished with copies of the complaint, the Accused was questioned regarding the offence committed under section 138 of the Negotiable Instruments Act , 1881. After completion of the Complainant evidence as P.W-1, the incriminating evidence available against him under Section 313(b) Cr.P.C were put to the Accused. The Accused denied the incriminating evidence. On appearance of the Accused and having furnished with copies of the complaint, the Accused was questioned regarding the offence committed under section 138 of the Negotiable Instruments Act , 1881. After completion of the Complainant evidence as P.W-1, the incriminating evidence available against him under Section 313(b) Cr.P.C were put to the Accused. The Accused denied the incriminating evidence. The Accused denied the charge under Section 138 of the Negotiable Instruments Act and claimed to be tried. Therefore, trial was ordered. In the trial, the Complainant examined himself as P.W-1 and marked six documents as Ex.P-1 to Ex.P-6. Ex.P-1 is the Power of Attorney deed, Ex.P-2 is the copy of the plaint in O.S.No.138 of 2007. Ex.P-3 is the cheque issued by the Accused bearing Cheque No.137135 dated 04.01.2011. Ex.P-4 is the return memo from the bank. Ex.P-5 is the legal notice issued on behalf of the Complainant to the Accused. Ex.P-6 is the reply notice on behalf of the Accused. The Accused-2 Jagadeeswara Reddy had examined himself as D.W-1. On behalf of the Accused, 19 documents were marked as Ex.D-1 to Ex.D-19. Ex.D-1 is the confirmation deed dated 03.01.2011. Ex.D-2 is the certified copy of the plaint in O.S.No.138 of 2007. Ex.D-3 is the Conversion order. Ex.D-4 is the settlement agreement. Ex.D-5 is also settlement agreement. Ex.D-6 is the original voucher dated 30.10.2010. Ex.D-6 to Ex.D-17 are original vouchers regarding payment of money to various parties to the dispute by the Accused. Ex.A-18 is the notice on behalf of the Accused to his bank to stop payment. Ex.D-19 is the statement of the account of the Accused which reflects that sufficient amount was available in his Bank account to honor the amount of Rs.8,00,000/- issued as cheque to the Complainant. 2.5. After completion of the defense witnesses, after hearing the arguments of the learned Counsel for the Complainant and the Accused, the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur on assessment of evidence arrived at a conclusion that the ingredients of offence of Section 138 of Negotiable Instruments Act , 1881 are not attracted in this case and therefore, dismissed the complaint of the Complainant and acquitted the Accused. 2.6. Aggrieved by the same, the Complainant had preferred this Appeal seeking to set aside the judgment of acquittal and to convict the Accused for the offence under 138 of Negotiable Instruments Act , 1881. 3. 2.6. Aggrieved by the same, the Complainant had preferred this Appeal seeking to set aside the judgment of acquittal and to convict the Accused for the offence under 138 of Negotiable Instruments Act , 1881. 3. It is the contention of the learned Counsel for the Appellant that the issuance of the cheque and the signature of the Accused are admitted. Also the learned Counsel for the Appellant invited the attention of this Court to the deposition of D.W-1. It is the submission of the learned Counsel for the Complainant that the lands belonging to one Narasimhaiah in S.No.47/1, Chimandahalli village, Jadigenahalli, was laid out for development of plots by the sister concern of Respondent Company. Narasimhaiah died in the year 2002. Despite the death of the Principal, the Respondents herein executed the layout. Late Narasimhaiah had three sons namely Ramaiah, Narayanasamy and Srinivasan. The three sons had executed Power of Attorney deed in favour of the Appellant. Further, the learned Counsel for the Appellant invited the attention of this Court to the statutory notice under Ex.P-5 issued on behalf of the Complainant to the Accused and the reply notice of the Accused under Ex.P-6. The defense of the Accused is that on condition that the Appellant/Complainant shall bring all the sons of Narasimhaiah to affix their signatures in the confirmation deed, the cheque was issued for Rs.8 lakhs. 4. The learned Counsel for the Appellant invited the attention of this Court to the confirmation deed under Ex.D-1 as well as the settlement agreement dated 30.10.2010 under Ex.D-4 entered into between the Complainant/Nagaraj, as Power of Attorney holder on behalf of the sons of late Narasimhaiah, namely Ramaiah, Narayanasamy and Srinivas, and the Respondent-2 Jagadeeswara Reddy. The party of the first part are the legal heirs of the late Narasimhaiah through their Power Agent Nagaraj the Complainant herein. The Party of the 2 nd part is the Respondent-2 herein Jagadeeswara Reddy. The party of the first part are the legal heirs of the late Narasimhaiah through their Power Agent Nagaraj the Complainant herein. The Party of the 2 nd part is the Respondent-2 herein Jagadeeswara Reddy. The settlement agreement is with regard to the suit filed in O.S. No. 138 of 2007 on the file of the learned Principal Civil Judge, Junior Division, Hoskote, in respect of the land in S.No.145, New No. 145/1 measuring to an extent of one acre 17 guntas out of 2 acres 17 guntas, situated at Jinnagara village, Jadigenahalli Hobli, Hoskote Taluk, wherein it is stated as follows:- “ ...upon the advice and intervention of well wishers and common friends the Parties of the first part and the Second Party have decided to amicably settle the dispute that arose between the parties in the above referred disputes. Whereas the parties of the first part do hereby declare that S.No.145 New No.145/1 measuring 1 acre 17 guntas out of 2 acre 17 guntas originally belonged to Sri.Narasimhaiah, the father of the Parties of the first part. The said Narasimhaiah during his life time had developed the said property with the aid of the Second party herein by putting him in possession of said lands and after forming layout thereon by obtaining necessary permission from concerned authorities, had sold the same for valuable consideration to prospective buyers. Now in order to put an end to untold miseries and above referred disputes, the parties of the first part represented by their GPA Holder Sri.Nagaraj and the second party have arrived at a settlement that the second party has agreed to pay a sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) to the parties of the first part and the first party has agreed to receive the same and to resolve the disputes amicably. In pursuance of the foregoing, the second party has this day paid a sum of Rs.2,00,000/- (Rupees two lakhs only) to the first party GPA Holder, Nagaraj as an advance by way of cheque bearing No.698225 dated 30.10.2010 drawn on Indus Indusind Bank, Marathahalli Baranch, Bangalore. And it is agreed upon between the parties herein that the Parties of the first part shall take back all the allegations made against the second party in O.S.No.138/2007 and shall report settlement before the Hon'ble Principal Civil Judge, (Jr Dn) Hoskote on receipt of remaining sum agreed herein. And it is agreed upon between the parties herein that the Parties of the first part shall take back all the allegations made against the second party in O.S.No.138/2007 and shall report settlement before the Hon'ble Principal Civil Judge, (Jr Dn) Hoskote on receipt of remaining sum agreed herein. By this settlement, the Parties of the first part have declared that they had/have no manner of right title, possession, interest whatsoever at any point of time over the subject matter of above referred suit i.e., S.No.145, New No. 145/1 measuring 1 acre 17 guntas out of 2 acre 17 guntas of Jinnagara village, Jadigenhalli Hobli, Hoskote Taluk and late Narasimhaiah, the father of the parties of first party had developed the land in S.No.145 with the aid of second party and sold the sites formed declare that the sale transactions made by late Narasimhaiah either by himself or through his agents are binding on them and they have no claims whatsoever over the said property and they have no objections or impediment for the second party and the prospective buyers to continue in possession of the said property. The parties of the first part have undertaken not to cause any interference or obstruction to the peaceful possession and enjoyment of the second party and buyers of sites formed on Survey No.145. The Parties of the first party duly represented by his GPA holder Sri Nagaraj have consented to be present and to report settlement before the Hon'ble Principal Civil Judge, (Jr. Dn) Hoskote along with legal heirs of Narasimhaiah and to execute and register documents before the Sub registrar and other authorities as prescribed and demanded by the second party in terms of above settlement on the day fixed by the parties herein.” 5. It is the contention of the learned Counsel for the Appellant that the suit in O.S. No. 138 of 2007 was filed by Nagaraj against Jagadeeswara Reddy for a bare injunction. The learned Judicial Magistrate, Fast Track Court while considering the complaint under Section 138 of The Negotiable Instruments Act , 1881 had observed that there was no consideration passed on to the Accused and therefore, the defense of the Accused is accepted and erroneously acquitted the Accused. 6. The learned Counsel for the Appellant invited the attention of this Court to page 7 of the judgment of the learned Judicial Magistrate. 6. The learned Counsel for the Appellant invited the attention of this Court to page 7 of the judgment of the learned Judicial Magistrate. It is the contention of the learned Counsel for the Appellant that the learned Judge had observed that on demand of the Complainant, a cheque was issued under the promise that he will bring all the legal heirs of the Narasimhaiah to affix their signature on the confirmation deed. As per the promise of the Complainant, he had not brought all the legal heirs of the deceased Narasimhaiah to affix their signatures on the confirmation deed on realising that on the date mentioned viz., 04.01.2011 they had not affixed their signatures on the confirmation deed, the Accused had issued notice dated 05.01.2011 to the Manager State Bank of Hyderabad, Maratha Halli Branch Bengaluru to stop payment. Also, the learned Judge had observed that the Accused had in the course of evidence stated that he is ready to pay the amount even on the date of his evidence before the learned Judicial Magistrate, Fast Track Court (Magisterial level), if the Complainant is ready to bring all the legal heirs to affix their signatures on the confirmation deed. On such consideration, the learned Judicial Magistrate had dismissed the complaint on the ground that there was no prior liability to issue cheque on behalf of the Accused to the Complainant. The learned Judicial Magistrate had observed that the ingredients of offence under Section 138 of the Negotiable Instruments Act , 1881 was not at all attracted. It was only a promise and an offer made by the Accused. When the offer made by the Accused was not honoured by the Complainant, on realising the same, the Accused issued stop payment notice to his Bank viz., State Bank of Hyderabad, Maratha Halli Branch, Bengaluru. Also the learned Judicial Magistrate had observed that the Accused had not established the case that he developed the lands of Narasimhaiah, by spending Rs.16,00,000/-. No document was produced by the Accused in support of his defense before the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur. The learned Counsel for the Appellant also invited the attention of this Court to the evidence of Defendant-2 as D.W-1 particularly to the cross examination of D.W-1. No document was produced by the Accused in support of his defense before the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur. The learned Counsel for the Appellant also invited the attention of this Court to the evidence of Defendant-2 as D.W-1 particularly to the cross examination of D.W-1. The fact that Nagaraj filed a suit for bare injunction before the Civil Judge, Hoskote was admitted by the Accused-2 as D.W-1. The fact that Nagaraj was the Power of Attorney agent of the sons of late Narasimhaiah namely Ramasamy, Narayanasamy and Srinivasan was also admitted by him. The fact that the sons of late Narasimhaiah did not sign the deed was claimed by D.W-1 in his cross examination. The Voucher in favour of Nagaraj was not cancelled was admitted by him in cross examination. The relevant portion of cross-examination of D.W-1 is extracted as under: 7. From the suggestion put to the Accused, it is found that the Accused had issued stop payment after making the Complainant believe to settle the case in which Nagaraj had obtained a decree in his favour on behalf of the Principal, the sons of Narasimhaiah. Thereby the Accused had contradicted himself by what he had stated in his reply notice. The learned Judge failed to consider the suggestions put to D.W-1 in cross-examination and therefore, the judgment of acquittal recorded by the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur is perverse and is to be set aside. 8. The learned Counsel for the Appellant invited the attention of this Court to the reported decision in the case of Lafarge Aggregates and Concrete India Pvt Ltd vs. Sukarsh Azad and another, (2014) 13 Supreme Court Cases 779 wherein it is held as follows:- “8. The object of bringing Sections 138 to 142 of the Negotiable Instruments Act on statue appears to be to inculcate faith in the efficacy of banking operations and credibility in transactions business of negotiable instruments. Despite several remedies, Section 138 of the Act is intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Despite several remedies, Section 138 of the Act is intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Therefore, once a cheque is drawn by a person of an account maintained by him for payment of any amount or discharge of liability or debt or is returned by a bank with endorsement like (i) refer to drawer, (ii) exceeds arrangements, and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of sections 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability.” 9. The learned Counsel for the Appellant also invited the attention of this Court to the judgment in Criminal Appeal No. 456 of 2012, dated 24.06.2016 [Manjunath vs. M/s. JR Housing Developers Pvt Ltd. Rep by its Managing Director S. Jagadeeswara Reddy] wherein the brother of the Complainant also preferred an Appeal against the very same Accused and the same was amicably settled out of Court. Thus, it is submitted that the cheque was issued towards a legally enforceable debt. The Accused failed to honour the cheque and thereby violated the provisions of Section 138 of The Negotiable Instruments Act , 1881. While so, the Judgment of acquittal passed by the Trial Court is erroneous and it is liable to be set aside. 10. Per contra, the learned Counsel for the Respondents invited the attention of this Court to the averments in the complaint, the evidence of the Complainant as P.W-1 particularly, cross-examination of P.W-1 and the evidence of D.W-1. According to the learned Counsel for the Respondents, the reply notice under Ex.P-6 itself proved the preponderance of Probabilities by the Accused. Therefore, the learned Judicial Magistrate (Magisterial level), Hosur on proper assessment of evidence arrived at a conclusion that the ingredients of offence under 138 of the Negotiable Instruments Act was not at all attracted. Thereby acquitted the Accused from the charge under Section 138 of the Negotiable Instruments Act , 1881. 11. Therefore, the learned Judicial Magistrate (Magisterial level), Hosur on proper assessment of evidence arrived at a conclusion that the ingredients of offence under 138 of the Negotiable Instruments Act was not at all attracted. Thereby acquitted the Accused from the charge under Section 138 of the Negotiable Instruments Act , 1881. 11. The learned Counsel for the Respondents invited the attention of this Court to the reported decision of the Hon'ble Supreme Court in the case of M.M.T.C. Ltd. and another vs. Medchl Chemicals and Pharma (P) Ltd. and another, (2002) 1 Supreme Court Cases 234, wherein it is held as follows:- “Pursuant to a memorandum of understanding, the respondent company issued two cheques, one dated 31-10-1994 and another dated 10-11-1994 in favour of the appellant company. Both the cheques when presented for payment were returned with the endorsement “payment stopped by drawer”. After issuing notices, the appellant lodged two complaints under Section 138 of the Negotiable Instruments Act through one L, the manager of its regional office. The respondent filed two petitions for quashing of the said complaints. Allowing the petitions the High Court held that the complaints were not maintainable. The High Court further held that the Manager (who had lodged the complaints) and the Deputy General Manager (who was substituted) were merely paid employees of the appellant company and had not been authorised by the Board of Directors to sign and file the complaint on behalf of the Company or to prosecute the same. It further held that the authorisation in favour of the Deputy General Manager could not cure the defect. Since in the complaint there was no specific allegation of existence of any debt or liability, the High Court further held that the cheques were issued as security and not for any debt or liability existing on the date of issuance. Opposing the appeals, the respondent contended inter alia, that the cheque having bounced on account of stoppage of payment by the drawer and not on account of insufficiency of funds, Section 138 was not attracted.” 12. By pointing out the above decision, the learned Counsel for the Respondents/Accused contended that the cheque was given on the assurance of the Complainant that he will bring the sons of the deceased to vouch the contract. When the Complainant did not bring them, stop payment was issued to the Bank. By pointing out the above decision, the learned Counsel for the Respondents/Accused contended that the cheque was given on the assurance of the Complainant that he will bring the sons of the deceased to vouch the contract. When the Complainant did not bring them, stop payment was issued to the Bank. In any event, there was no consideration passed on from the Complainant. Since the Complainant did not fulfil the requirement of the Accused, there is no necessity to honour the cheque. The cheque was not issued for any past liability but it was issued in advance to enable the complainant to bring the legal heirs to sign the documents. While so, the learned Judicial Magistrate is wholly justified in recording a judgment of acquittal in favour of the Accused/Respondent herein. In such circumstances, interference of this Court is not warranted and he prayed for dismissal of this appeal. Point for Consideration Whether the judgment dated 27.06.2012 passed in S.T.C.No.25 of 2011 by the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur is perverse and is to be set aside? 13. Heard the learned Counsel for the Appellant and the learned Counsel for the Respondents. Perused the records in S.T.C.No.25 of 2011. Perused the judgment dated 27.06.2012 passed in S.T.C.No.25 of 2011 by the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur. 14. From the judgment of the learned Judicial Magistrate, it is found that the dispute between the Complainant and the Accused is with regard to the development of land in S.No.145/1, Jinnagara Village, which originally belonged to one Narasimhaiah. The Complainant/Nagaraj claims to be father- in-law of the one of the sons of Narasimhaiah viz., Ramaiah and also he holds the Power of Attorney deed on behalf of the sons of the Principal Narasimhaiah. He claims to have developed the property by spending Rs.16,00,000/- (Rupees Sixteen Lakhs). Subsequently, he came to know that the Accused had entered into development agreement with Narasimhaiah. Therefore, he had approached the Court of the learned Civil Judge, Hoskote seeking injunction against the Accused-2 as Defendant. The learned Principal Civil Judge, Hoskote had granted decree in favour of the Plaintiff/Nagaraj for the same property. Subsequent to the decree, they entered into compromise. Subsequently, he came to know that the Accused had entered into development agreement with Narasimhaiah. Therefore, he had approached the Court of the learned Civil Judge, Hoskote seeking injunction against the Accused-2 as Defendant. The learned Principal Civil Judge, Hoskote had granted decree in favour of the Plaintiff/Nagaraj for the same property. Subsequent to the decree, they entered into compromise. In the light of the compromise, the Accused issued the cheque No.137135 for Rs.8,00,000/- and in the light of that settlement, confirmation deed was executed whereby the Complainant/Nagaraj stated to have assured the Accused that he will bring all the legal heirs of the Narasimhaiah to affix their signature on the confirmation deed. In the confirmation deed, the legal heirs of Narasimhaiah agreed to give up their rights over the property in favour of the Accused. On such promise, the Accused had issued cheque. As pointed out in the reported decision in the case of MMTC Ltd and another vs. Medchl Chemicals and Pharma (P) Ltd and another, (2002) 1 Supreme Court Cases 234 , the cheque was returned on the ground that “payment stopped by the drawer” and it also falls within the Provisions of 138 of the Negotiable Instruments Act , 1881. But the facts in this case is on the date when the cheque was presented there was sufficient amount available in the account of the Accused. The Accused had proved through his Bank Account furnished before the trial Court as Ex.D-19 that there was sufficient balance to honour the cheque for Rs.8,00,000/-. Thus, it is evident that the cheque was issued on condition that the Complainant will bring the three legal heirs of late Narasimmiah to affix their signature declaring that they have no right or interest in the property upon receipt of Rs.8 lakhs. When they did not come forward to sign the documents, there is no obligation on the part of the Accused to honour the cheque. The learned Judicial Magistrate, therefore, rightly held that there was no consideration passed on to the Accused and therefore, the stoppage of payment of the cheque will not attract the ingredients of Section 138 of the Negotiable Instruments Act , 1881. 15. The agreement between Nagaraj and the Accused in this case is with regard to the settlement subsequent to the decree in favour of the Complainant/Nagaraju in the suit in O.S. No. 138 of 2007. 15. The agreement between Nagaraj and the Accused in this case is with regard to the settlement subsequent to the decree in favour of the Complainant/Nagaraju in the suit in O.S. No. 138 of 2007. As per the settlement reached, the Complainant has to bring all the legal heirs of late Narasimiah to affix their signatures in the settlement deed but they did not come forward to affix their signature on 04.01.2011. Also the learned Judicial Magistrate had observed that the Plaintiff had not furnished documents regarding proof that he had invested Rs.16,00,000/- (Rupees Sixteen Lakhs only) to develop the property belonging to late Narasimhaiah. He had not furnished any document as proof of the same. Also on appreciation of evidence, the learned Judge found out that the Complainant had opened his account only after issuance of the cheque by the Accused. Therefore, the claim of the Complainant that he spent Rs.16,00,000/- (Rupees Sixteen Lakhs only) was not proved. On appreciation of the evidence, the learned Judicial Magistrate also observed that the Complainant herein claims to be an Astrologer and his claim made by the Complainant that he had invested money was not proved before the learned Judicial Magistrate. 16. On perusal of the records, a suggestion was made on behalf of the Accused in the cross-examination of the Complainant as P.W-1 during which he admitted in cross-examination regarding the development agreement between Narasimhaiah and the Accused in the name of Shivapriya. Also he admitted that while instituting the suit under Ex.P-2, O.S.No.138 of 2007, he had not impleaded the Company of the Defendant as proper and necessary party. Also he had admitted that he had received Rs.2,00,000/- (Rupees Two Lakhs only) as advance during the time of his daughter's Marriage. He had admitted in his cross-examination that he had not furnished any document as claimed that 70% of the sale proceeds from the property is to be given to the sons of Narasimhaiah and 30% to the Power of Attorney agent, the Complainant/Nagaraj. He had admitted that during the pendency of the suit in O.S.No.138 of 2007, he had made representation to the Defendant that they can enter into sale agreement and compromise the subject matter. He had admitted that during the pendency of the suit in O.S.No.138 of 2007, he had made representation to the Defendant that they can enter into sale agreement and compromise the subject matter. He also admitted that he had received Rs.2,00,000/- (Rupees Two Lakhs only) as advance sometime in October, 2010 and made representation to the Accused that he will bring all the legal heirs of the Narasimhaiah to sign the agreement. The suggestion that Rs.8,00,000/- (Rupees Eight Lakhs only) was issued by the Accused only on the undertaking given by the Complainant that he will bring all the legal heirs of the Narasimhaiah to sign on the confirmation deed was denied by him in cross examination. He admitted that he had signed the said confirmation deed. He admitted that all the legal heirs of the Narasimhaiah had signed it except Ramaiah and his two sons. Also he had admitted that those who signed Confirmation deed was paid by the Accused. He had admitted in his cross-examination that there is dispute between him and his brother. On assessing the cross-examination of Complainant as P.W-1, the learned Judicial Magistrate observed that the defense of the Accused is more probable and the stop payment letter issued by the second Accused under Ex.P-18 was found justified. Therefore, such a finding of the learned Judicial Magistrate on assessment of evidence, need not be interfered with by this Court. The statement of the Accused before the Court that on the date of his examination before the trial Court he was ready to settle Rs.8,00,000/- (Rupees Eight Lakhs only) provided the Complainant is able to bring Ramaiah and his sons to sign the document. Therefore, the learned Judicial Magistrate, had observed that the ingredients of the offence under of Section 138 of the Negotiable Instruments Act , 1881 had not been attracted as there was no proper liability. The Accused only made an offer subject to a condition and that condition had not been fulfilled by the Complainant. It was an offer made by the second Accused on the promise that the Complainant undertakes to bring all the legal heirs to give a quietus to the dispute. Therefore, the finding of the learned Judicial Magistrate in dismissing the Complaint is found proper. 17. The Complainant has to establish his case by raising a presumption and only then, the burden will shift on the Accused. Therefore, the finding of the learned Judicial Magistrate in dismissing the Complaint is found proper. 17. The Complainant has to establish his case by raising a presumption and only then, the burden will shift on the Accused. Here, even though, the trial proceeded on the presumption that the Accused had not denied the issuance of the cheque, the Accused discharged his rebuttal evidence by issuing a reply notice, adducing evidence and also marking the documents in support of his claim under Ex.D-1 to Ex.D-19 and thereby he had proved that there was sufficient amount in his account on the date of issuance of stop payment under Ex.D-18. Therefore, as pointed in the reported decision relied by the learned Counsel for the Respondents in MMTC Ltd and another vs Medchl Chemicals and Pharma (P) Ltd and another, (2002) 1 Supreme Court Cases 234, the Accused had discharged the burden whereby stop payment is not attracted to the complaint filed by the Complainant under Section 138 of the Negotiable Instruments Act , 1881 in this case. If stop payment is issued and there is no sufficient amount in the account of the Accused on the date of issuance of cheque or on the date of return of the cheque under the caption stop payment, then it attracts Section 138 of the Negotiable Instruments Act , 1881. Therefore, the reasoning of the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur, is found proper. It is on proper appreciation of evidence. Therefore, the judgment of the learned Judicial Magistrate is to be confirmed. 18. In the light of the above discussion, the Point for Consideration is answered against the Appellant/Complainant and in favour of the Accused. The judgment dated 27.06.2012 passed in S.T.C.No.25 of 2011 by the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur is found proper which does not call for any interference by this Court and the same is to be confirmed. In the result, the Criminal Appeal is dismissed as having no merits. The judgment dated 27.06.2012 passed in S.T.C.No.25 of 2011 by the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Hosur is confirmed.