NASURULLA KHAN Vs. SMT. K.DEVI

JUDGEMENT

(1.) The present petitioner was accused in C.C.No.4210/2008, in the Court of the learned XV Addl. Chief Metropolitan Magistrate, Bengaluru City, (hereinafter for brevity referred to as the "trial Court"). By its judgment dated 27.11.2009, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as " N.I. Act') and was sentenced accordingly.

(2.) The summary of the case of the complainant in the trial Court is that the petitioner (accused) being an individual, approached the respondent (complainant) to sell the property bearing House List No.1, V.P. Khata No.317C, situated at Cholanayakanahlli Village, Kasaba Hobli, Bangalore North Taluk, Bangalore, New Corporation No.99, Chamundinagar Main Road, R.T. Nagar Post, Bangalore-32, measuring East to West 30 feet and North to South 40 feet, totally 1200 sq.ft. due to his unforeseen financial circumstances and inability to make proper repayment to the concerned bank where the accused had availed the loan. The complainant/respondent, having an affinity to the said property since she was holding the said property for a period of more than one year which had been earlier purchased by her for a sale consideration of Rs. 41,00,000/- from one Mr. Touseef AN and later conveyed by her in favour of the accused, agreed to purchase the said property and hence entered into an agreement with the accused for purchase of the said property on 15.09.2007, for a sum of Rs. 60,00,000/- and paid a sum of Rs. 55,00,000/- to the accused as an advance amount on the condition that the accused would get the property registered in favour of the complainant within fifteen days from the date of the said sale agreement dated 15.09.2007. It is further stated in the private complaint that the accused again approached the complainant to terminate the agreement for sale dated 15.09.2007 and to take back the advance amount. Due to the intervention of the well wishers and friends, the matter was amicably settled and the complainant agreed to terminate the agreement for sale dated 15.09.2007 and in terms of settlement entered into between the parties as per Ex.P-8 dated 5.10.2007, the accused had paid a sum of Rs. 15,00,000/- by two installments i.e., Rs. 13,50,000/- on 4.10.2007 and XI,50,000/- on 5.10.2007 respectively. For the remaining advance amount of Rs. 40,00,000/-, the accused has issued two cheques viz., Ex.P-2 bearing No.979781, dated 15.11.2007, for Rs. 20,00,000/- and another cheque at Ex.P-3, bearing No.979782, dated 20.11.2007, for Rs. 20,00,000/-, drawn on Amanth Co-operative Bank, Shivajinagar Branch, Bengaluru, to discharge the aforesaid liabilities and assured that the cheques will be honoured when presented for encashment. As per the assurance of the accused, the complainant presented both the cheques on 20.11.2007 through her bank, but, the said two cheques at Exs.P-2 and P-3 were returned by the complainant's bank for the reason "funds insufficient" as per the Banker's endorsements at Exs.P-6 and P-7,dated 22.11.2007 respectively. Immediately thereafter, the complainant issued a legal notice on 26.11.2007, the copy of which is marked at Ex.P-9 demanding the payment of the cheque amounts of Rs. 40,00,000/- within fifteen days from the date of receipt of the notice, which was served on the accused on 4.12.2007 as per the postal acknowledgement at Ex.P-11. In spite of service of legal notice, the accused has not made any repayment and instead, he has given an evasive reply notice dated 5.12.2007 as per Ex.P-13 by denying the very transaction between the parties. It is further alleged by the complainant that the accused had deliberately issued the cheques with the sole intention of cheating and defrauding the complainant and has deliberately allowed the cheques to be dishonoured and thus committed an offence punishable under Sections 138 and 142 of N.I. Act. The complainant having complied with the mandatory requirements of Section 138 of N.I. Act, had filed the private complaint as per Ex.P-1.

(3.) Since the accused pleaded not guilty, charges were framed against the accused for the alleged offences.