SMT. SARASWATHI Vs. SRI. JAYAPPA M.N.

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

(2.) The factual matrix of the case of the complainant before the Trial Court while invoking Sec. 138 of Negotiable Instruments Act, 1881 ( 'NI Act ' for short), in a private complaint filed under Sec. 200 of Cr.P.C., it is contended that the accused is the absolute owner of land bearing No.44/2, khatha No.888, measuring east to west 15 feet and north to south 40 feet, situated at Hosahalli, Gollarapalya Village, Yeshavantpura Hobli, Bangalore North Taluk, under a registered sale deed dtd. 19/2/2014. The accused was in need of money and she approached the complainant and offered to sell the property. The complainant also wanted to purchase the said property. Therefore, he entered into an agreement of sale with the accused on 15/4/2015 through registered agreement. The complainant paid an amount of Rs.5,00,000.00 to the accused and agreed to pay the balance consideration out of total Rs.7,20,000.00 on the date of registration. The complainant was ever ready for registration of the sale deed, but the accused failed to provide necessary documents. The period mentioned in sale agreement came to be expired and both of them again entered into subsequent agreements. But the accused failed to provide necessary documents and again requested the complainant to pay further amount of Rs.2,00,000.00. The complainant paid Rs.2,00,000.00 and in all paid the amount of Rs.7,00,000.00. But inspite of it, the accused did not come forward to execute the sale deed. After due negotiations, the accused agreed to pay the amount of Rs.12,00,000.00 and accordingly, she had issued a cheque dtd. 3/4/2018 for an amount of Rs.12,00,000.00. When the said cheque was presented, it came to be dishonoured with an endorsement "funds insufficient ". The notice was issued and the same was served, but the accused did not repay the amount and also did not reply to the same. Hence, complaint was filed and cognizance was taken. The accused was secured and she did not plead guilty and claimed trial. Hence, the complainant examined himself as P.W.1 and got marked the documents at Exs.P.1 to 16. The complainant also examined two witnesses as P.W.2 and P.W.3 in support of his complaint. The accused was subjected to 313 statement, but she did not choose to lead any defence evidence.

(3.) The main defence which was taken before the Trial Court by the accused was that the complainant has not paid the amount as stated in the complaint. The defence of the accused was that the persons by name Ningamma and Jyothi have received the amount from the complainant. The accused has also taken the defence of chit amount, but no documents are produced to that effect. The other contention was taken that the cheque is a joint account cheque of the accused and her husband. It is also contended that the sale agreement was taken as a guarantee in respect of the chit business. But the same is not supported by any documents. The contention was taken that the amount was repaid and the same was denied in the cross-examination of P.W.1. The accused did not explain how her cheque went to the hands of the complainant. The Trial Court taking into note of all these materials, comes to the conclusion that there is a presumption under Sec. 138 of the NI Act. Though the accused cross-examined P.W.1 and took number of defences, the same was not accepted by the Trial Court and comes to the conclusion that there is no any rebuttal evidence by placing any material in respect of the chit transaction and also transaction between Ningamma and Jyothi and hence, the Trial Court convicted the accused and sentenced to pay an amount of Rs.12,75,000.00.