VENKATESH PRASAD Vs. SUBRAY V. BHAT

JUDGEMENT

(1.) BY judgment dated 21.3.2009 in C.C. No. 7353/2008 on the file of the XVI Additional Chief Metropolitan Magistrate, Bangalore, the petitioner has been convicted for the offence punishable under Section 138 of N.I. Act and has been sentenced to pay a fine of Rs. 37,00,000/ -, in default, to undergo Simple Imprisonment for a period of one year and ordered to pay a sum of Rs. 36,75,000/ - as compensation to the respondent -complainant out of fine amount. The judgment of conviction and sentence has been confirmed by the Fast Track Court -I, Bangalore City in Criminal Appeal No. 332/2009 by judgment dated 22.12.2009. Challenging the judgment passed by both the Courts below and questioning its legality and correctness, this revision petition is preferred by the petitioner under Section 397 r/w Section 401 of Cr.P.C. The petitioner was the accused before the Magistrate and the respondent was the complainant. The case of the complainant as made out before the Magistrate is that the complainant and accused are friends since many years. The accused was engaged in real estate business at Peenya area. He induced the complainant to purchase a property bearing No. 480/A2, measuring 28,557 sq.ft. consisting of constructed factory building with A.C. roofing in Sy. No. 88 of Nellakaderenahalli Village, 4th Phase, Peenya Industrial Area, Yeshwanthpura Hobli, Bangalore North Taluk for a total consideration of Rs. 1,49,00,000/ -. The complainant entered into an agreement with the accused on 29.8.2005 and in pursuance of the agreement, he paid Rs. 25,00,000/ - on 29.8.2005, Rs. 12,50,000/ - on 17.9.2005, Rs. 12,50,000/ - on 19.10.2005 totally amounting to Rs. 50,00,000/ - to the accused. But the Sale Deed could not be executed because of non -transferable title of the accused over the property. Instead of executing the sale deed, the accused went on demanding more amount in view of the considerable increase in the value of the land in Bangalore. As such, they mutually cancelled the agreement in view of the fact that the accused agreed to pay Rs. 80,00,000/ - to the complainant in four installments. Accordingly, the accused paid a sum of Rs. 50,00,000/ - and towards the payment of balance amount of Rs. 30,00,000/ -, the accused issued three cheques drawn on Indian Overseas Bank, Malleswaram Branch, Bangalore dated 15.11.2006, 25.11.2006 and 5.12.2006 for Rs. 10,00,000/ - each. On presentation of the cheques on 10.12.2006, all the cheques returned with an endorsement "Not Arranged For". So, the complainant got issued a legal notice on 2.1.2007 to the accused through RPAD and by Under Certificate of Posting. In spite of receipt of the notice, the accused neither replied the notice nor paid the cheque amount. As such, a complaint came to be filed against the accused for the offence punishable under Section 138 of N.I. Act.

(2.) IN response to the notice, the accused appeared before the Magistrate and denied the charge levelled against him. The complainant in order to establish the charge examined himself as PW -1 and marked Exs. P1 to P10. The accused, on the other hand, has not led defence evidence except marking Ex. D -1 in the cross -examination of PW -1. Learned Magistrate upon hearing both the learned Counsel appearing for the parties and upon consideration of the entire material placed on record held that the accused committed an offence punishable under Section 138 of N.I. Act, which resulted in his conviction and sentence by the Magistrate by judgment dated 21.3.2009. The Criminal Appeal filed by him against his conviction and sentence came to be dismissed on merits by the learned Sessions Judge by judgment dated 22.12.2009. Aggrieved by the judgment passed by both the Courts below, the revision petitioner is before this Court.

(3.) THE learned Counsel for the petitioner would submit that three cheques in question were given to the complainant towards security while they were dealing in their business and that the complainant instead of returning those cheques misused and filed this case. The learned Counsel further submitted that there is no evidence as to the existence of liability to pay Rs. 30,00,000/ - to the complainant over and above Rs. 50,00,000/ -. Further, he submitted that in the sale agreement marked as Ex. D1, there is no whisper about the three cheques being issued. Learned Counsel placed reliance on the decisions of the Supreme Court : I (2008) SLT 593 : 1 (2008) CCR 199 (SC) : II (2008) BC 44 (SC) : I (2008) DLT (Crl.) 449 (SC) : (2008) 4 SCC 54, Krishna Janardhan Bhat v. Dattatraya G. Hegde and : III (2009) BC 659 (SC) : (2009) 14 SCC 398, M.D. Thomas v. P.S. Jaleel and Another and sought to allow the revision petition and to set aside the judgment of conviction and sentence.