INDRADANUSH PROPERTIES PVT. LTD. REP. BY ITS DIRECTOR G. SRIDHAR Vs. SRI. M.B. SHIVARAMEGOWDA S/O. BOREGOWDA

JUDGEMENT

(1.) THIS appeal filed Under Section 378(4) of Cr.P.C. by the complainant is directed against the judgment and order dated 02.02.2009 passed by the XIX Additional CMM, Bangalore City, in CC No. 23377/2005 acquitting the respondent/accused of the offence for the offence punishable Under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act').

(2.) THE case of the appellant/complainant was that the accused purchased a flat constructed by the complainant at Chikkasandra Village, Yeshwanthpur Hobli, Bangalore North Taluk, and agreed to pay the balance amount and for payment of the balance amount, he issued the cheque bearing No. 18287 dated 19.03.2005 drawn on Ashok Nagar Co -operative Bank Ltd, for Rs. 19,060/ - in favour of the complainant and when the said cheque was presented for encashment, the same was returned un -paid with the Banker's endorsement "Funds Insufficient" and in spite of service of notice, the respondent/accused failed to pay the amount, as such, he committed the offence punishable under Section under Section 138 of the Act.

(3.) THE defence of the respondent/accused was that he was not due any amount to the complainant towards sale consideration of the flat purchased by him and that the cheque in question was not issued towards balance sale consideration. It was his further defence that the entire sale consideration for the sale of the flat bearing No. E5 as per the sale deed dated 13.09.2000 was paid, as acknowledged in the sale deed and subsequently, in the year 2003, he purchased two more flats bearing Nos. G6 and G7 in respect of which the complainant executed two sale deeds dated 23.04.2002 and 17.07.2003, wherein the receipt of the entire sale consideration has been acknowledged by the complainant, as such, he was not due any amount to the complainant towards sale consideration. It was his further defence that in the year 2003, while selling flats Nos. G6 and G7, the complainant had assured to get the electrification after obtaining approval from the concerned authorities and since, the complainant failed to do so, there were some clashes between him and the complainant and in that regard, a compromise was arrived at, wherein the complainant agreed to carry on changes pointed out by the accused and also to provide electrification and also two car parking space. At that time, as insisted by the complainant, he issued two cheques to the complainant for the said work and subsequently, the complainant failed to carry -out those works and demanded excess amount of Rs. 50,000/ - and in that regard, once again, some clashes took place. At that juncture, the complainant colluded with the Peenya Police, by using money power, forcibly brought the accused to Peenya Police Station and forcibly obtained his signatures on a blank cheque and stamp papers. Thus, according to the accused, the cheque was not issued for discharge of any debt or liability due by him to the complainant, as such, he has not committed any offence under Section 138 of the Act.