MAQSOOD Vs. SYED RIZWAN

JUDGEMENT

(1.) The accused in CC No.170/2014 on the file of the learned XXI Additional Chief Metropolitan Magistrate, Bengaluru City, (hereinafter referred to as 'the trial Court' for brevity) is impugning the judgment of conviction and order of sentence dtd. 27/7/2018, convicting him for the offence punishable under Sec. 138 of Negotiable Instrument Act ('NI Act' for short) and sentencing to pay fine of Rs.92,10,000.00, in default, to undergo simple imprisonment for a period of six months, which was confirmed in Crl.A.No.1678/2018 on the file of the learned LVI Additional City Civil and Sessions Judge, Bengaluru, CCH-57) (hereinafter referred to as the 'First Appellate Court' for brevity), vide judgment dtd. 23/12/2019.

(2.) Brief facts of the case are that, the complainant filed private complaint in PCR No.16462/2013 before the trial Court against the accused alleging commission of offence punishable under Sec. 138 of NI Act. It is contended that the accused introduced himself as son of Veteran artist Mehmood Ali and that one Masoom Ali is his elder brother. He also proclaimed that his elder brother Masoom Ali is the absolute owner in possession of the land bearing Sy.Nos.2 and 3 of Kenchenahally Village, Yelahanka Hobli, Bengaluru North Taluk, measuring 9.221/2 acres. He fraudulently claimed that he is the GPA holder of his brother and he is having authority to dispose of or transfer or enter into any agreement for sale with prospective buyers. Believing the words of the accused, the complainant agreed to purchase the said land for a total consideration amount of Rs.92.00 lakhs and agreement for sale dtd. 17/12/2002 was executed by the accused and the complainant paid a sum of Rs.22.00 lakhs in cash in the presence of the witnesses. The accused promised to produce the original documents including the original GPA deed, said to have been executed by his brother and to execute the sale deed in favour of the complainant. It is stated that the accused had postponed execution of sale deed on one pretext or the other claiming that, he being the professional, engaged at different parts of India. On 23/8/2009, he induced the plaintiff to pay another sum of Rs.5.00 lakhs as additional advance for agreement of sale dtd. 17/12/2002. The accused agreed to receive the balance amount of Rs.65.00 lakhs and to execute the registered sale deed. The further agreement for sale dtd. 23/8/2009 was also executed.

(3.) It is contended that the accused went on evading the complainant and postponing execution of sale deed and therefore, the complainant issued the legal notice on 12/6/2010 calling upon the accused to execute the sale deed by accepting the balance consideration amount. The said notice was served on the accused, but inspite of that, he had not executed the sale deed. Therefore, the complainant filed the suit O.S.No.599/2010 against the accused before the learned Principal Civil Judge, Senior Division, Bengaluru Rural District, seeking specific performance of the contract. The accused being the defendant in the said suit, appeared before the trial Court and filed his written statement. Thereafter, started persuading the complainant to withdraw the suit. As if the matter is amicably settled between the parties, the complainant being the plaintiff in the said suit could get back the Court fee paid, he agreed to withdraw the suit O.S.No.599/2010. But however, the accused went on postponing to settle the dispute till December 2012. Just before Christmas in 2012, the accused approached the complainant for settlement and offered to pay Rs.92.00 lakhs as compensation amount to the complainant, which includes the advance amount of Rs.27.00 lakhs paid by the complainant. The appreciation in the market value of the land was taken into consideration to fix compensation as damages from 2002 to 2012. The accused sought for three more months time to pay the amount of Rs.92.00 lakhs. Finally, the accused received back the original agreement for sale, further agreement for sale, legal notice and reply notice from the complainant and handed over the cheque bearing No.022854 dtd. 16/3/2013, drawn on Corporation Bank, Yelahanka Branch, Bengaluru for Rs.92.00 lakshs. The cheque was presented by the complainant for encashment, but it was dishonoured as there was insufficient funds in the account of the accused. The complainant issued the legal notice informing the accused regarding dishonour of the cheque and calling upon him to pay the cheque amount. Inspite of service of notice, the accused neither complied with the demands made therein, nor replied to the notice. Thereby, he has committed the offence punishable under Sec. 138 of NI Act.