M.J. SRINIVAS PRASAD, S/O. JAGANATHA SHETTY Vs. M/S. NANDH PRODUCTS PROMOTERS (P) LTD., NO. 9, 10, GROUND FLOOR, 53 MANANDI JEWELLERS PLAZA, NAGARATHAPET MAIN ROAD, BANGALORE-560053, K.P. SRINANDH, DIRECTOR, M/S. NANDH PRODUCTS PROMOTERS (P) LTD

JUDGEMENT

(1.) THE appellant has challenged the Judgment and Order of acquitting the respondents for the charge under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the Act" for short].

(2.) THE appellant is the complainant, whereas the respondents are the accused before the trial Court. The appellant had rendered services to the accused for getting sanction of the loan and in the circumstances, the respondents agreed to pay a sum of Rs. 7,50,000 -00 and accordingly issued a cheque dated 10.11.2002, drawn on Karur Vysya Rank Limited, Bangalore. When the said cheque was presented for encashment on 10.11.2002, it returned with an endorsement of insufficient funds. The appellant issued a notice of demand and it was not complied by the respondents. It is under these circumstances that a complaint came to be lodged by the appellant before the trial Court to initiate action against the respondents for the aforesaid offence. During the trial, the appellant examined himself as P.W. I and in his evidence, got marked the documents Exs.P1 to 16. The statement of the accused was recorded under Section 313 Cr.P.C. The accused examined respondent No. 3 as D.W.I and no documents were presented. The trial Court after hearing the Learned Counsel for the parties and on appreciation of the material on record, acquitted the respondents for the charge under Section 138 of the Act. Aggrieved by the acquittal, the present appeal has been filed.

(3.) THE appellant has produced the cheque at Ex. P2 dated 10.11.2002 for a sum of Rs. 7,50, 000 -00 drawn in favour of the appellant The memorandum of understanding between the parties as regards service charges payable to the appellant has been produced at Ex. P5 and it is dated 10.11.2001. The respondents had applied for a loan of Rs. 4 crores with the Bank of Rajasthan The appellant has rendered the services for the sanction of the said loan. But, so far as the service charges of Rs. 7,50,000 -00 is concerned, they entered into the understanding referred to supra at Ex. P5 and the relevant portion of Ex. P5 reads: Now M/s. NANDH PRODUCT PROMOTERS [P] LTD. is giving cheques bearing No. 808675 for Rs. 7,50,000 -00 (Seven lakhs fifty thousand only) bearing No. 808676 Rs. 7,50,000 -00 (Rupees Seven lakhs fifty thousand only) and bearing No. 808677 Rs. 7,00,000 -00 (Seven lakhs only) of KARUR VYSYA BANK LTD., J.C. Road, Bangalore, in favour of (1) K.V.N. SASTRY (2) M.J. SRINIVASA PRASAD and (3) M.N.G. RAJU respectively, on the condition that only and only if the loan is sanctioned and released the above stated cheques is permitted to be presented in the Bank for payment or preferably the cheques can be returned back for payment of cash. This Memorandum of Understanding is to the satisfaction of all parties hereinbelow and all parties are expected to comply with the terms of understanding. So, as could be seen from the understanding between the parties as incorporated in Ex. P5, the appellant is permitted to present the cheque for payment only if the loan is sanctioned and released. So, it was necessary for the appellant to establish that apart from the sanction of Rs. 4 crores, he has to render the assistance for release of the said amount. Though Ex. P15 reveals that an amount of Rs. 400 lakhs was sanctioned, the appellant has not produced any document to establish that the amount of loan, which was sanctioned has been released. During the pendency of this appeal, the appellant has produced a certified copy of the Judgment of the Debt Recovery Tribunal, wherein the Bank of Rajasthan Ltd. had instituted the suit against the respondents herein for recovery of the loan advanced to them. Legal assistance for which was granted by the appellant. As could be seen from the Judgment, an amount of Rs. 4 crores was not released by the bank in favour of the respondents. In such circumstances, the condition incorporated in Ex. P5 so far as the release of Rs. 4 crores is concerned is not complied with by the appellant and in such circumstances, unless the amount is released, he was not authorized to submit the present cheque for encashment. So, it is purely a matter of civil nature and it is for the appellant to approach the Civil Court to seek appropriate remedy. In the circumstances, the trial Court taking into consideration the fact that the requirement of conditions contained in Ex. P5 are not fulfilled, rightly rejected the complaint of the appellant and acquitted the respondents. In that view of the matter, I do not find any ground to interfere with the Order of acquittal. Hence the appeal has no merits and the same is dismissed accordingly. If the appellant is so advised, he can approach the Civil Court by recourse to appropriate remedy.