B VIJAYABHASKAR SHETTY Vs. H K RAGHUNATH

JUDGEMENT

(1.) Appellant-Complainant has preferred this appeal to set aside the judgment of acquittal dtd. 20/9/2011 passed in Crl.Appeal No.25143/2010 by the Court of Additional Sessions Judge and P.O., FTC III, Mayo Hall Unit, Bangalore (for brevity, hereinafter referred to as the 'Sessions Court') and restore the judgment and order dtd. 12/10/2010 passed in C.C.No.30850/2007 by the Court of XIV Addl. CMM, Bangalore. (hereinafter referred to as the 'Trial Court').

(2.) For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Appellate Court.

(3.) Brief facts of the case of complainant are that: The complainant is doing Real Estate business and also Financial Consultancy and Wealth Management Services. The accused contacted complainant during the month of January,2004 and convinced that he is having good contact with the local people and he promised the complainant that he could procure about 400 acres of land in Anekal taluk. The complainant believed his words and as per the terms of agreement, entered into memorandum of understanding dtd. 3/2/2004. The complainant paid a sum of Rs.10,00,000.00 at the time of signing memorandum of understanding. The complainant was required to pay a sum of Rs.15,00,000.00 per each acre of land to the accused as per terms of memorandum of understanding as consideration and it was payable to the accused in installments depending upon the progress made by him in procuring the lands as per terms of agreement. The land identified by the accused for the complainant was notified by Karnataka Housing Board. The complainant negotiated with the competent authority and finally Karnataka Housing Board agreed to pay Rs.34,00,000.00 and also one housing plot measuring 30'x40' for each acre acquired by the Karnataka Housing Board. It is further agreed that as per the MOU entered into between the complainant and accused, the accused is liable to pay the amount of Rs.3,00,000.00 for each acre of land contracted under the said MOU. Therefore, accused is legally liable to pay an aggregate amount of Rs.12,21,00,000.00 which has been agreed by the accused to pay to the complainant as and when the Karnataka Housing Board released the compensation to the land owners. Accordingly, on 10/5/2007, the complainant sent a telegram asking the accused to pay a sum of Rs.1,40,00,000.00 as part payment out of Rs.12,21,00,000.00. The accused issued cheque bearing No.075005 for Rs.70,00,000.00drawn on Canara Bank, Infantry Road Bangalore in favour of the complainant with a covering letter dtd. 19/6/2007 towards part payment by promising him that he has sufficient funds in his account and the complainant can present the cheque for encashment. Believing the words of accused, the complainant presented the cheque through his banker Vijaya Bank, Mayo Hall Branch, Bangalore but the same has returned with endorsement as 'funds insufficient. The complainant got issued legal notice on 12/7/2007 both through RPAD and UCP. The notice sent through RPAD returned without being served on the accused. But the notice sent through UCP was duly served on the accused. In response, the accused neither paid the cheque amount nor replied to the said legal notice. Therefore, the accused has committed offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as '138 of N.I.Act' for short).