MRUTHUNJAYA D HULGUR Vs. M VIJAYAKUMAR

JUDGEMENT

(1.) This appeal is preferred by the complainant being aggrieved by the judgment and order dated 1.3.2013 passed by the XIII ACMM Court, Bengaluru, in C.C. No.12053/2009. By the said judgment, the respondentaccused is acquitted of the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'the N.I. Act').

(2.) Brief facts of the case of the appellantcomplainant before the learned Magistrate is that The respondent had executed an agreement to sell his house property bearing No.1229, 1st Stage, 1st Phase, BTM Layout, Bangalore (Ward No.65), dated 09.12004 in favour of the appellant. The said agreement was registered. The agreed total sale consideration was Rs. 70.00 Lakhs. Out of the said amount, the respondent received Rs. 25.00 lakhs by cheque and the balance amount in cash, on different dates. The appellant submits that, the above said agreement to sell was cancelled by agreement dt.203.2005 which is also registered. In the said agreement of cancellation, it is stated that, a cheque bearing No.653704 drawn on Bank of Baroda, John Nagar Branch, Bangalore 560 034, dt.203.2005, for Rs. 30 lakhs is given towards the repayment of part of the sale consideration. However, the said cheque was in fact not given to the appellant, but used by the respondent himself, which is clear from the statement of account of the bank account of the respondent marked as Ex.P.11. Cheque bearing No.00653704 of the value of Rs. 10,090/- is debited from the account on 25.04.2005. Thus, no part of the sale consideration of Rs. 70.00 lakhs was refunded. It is further stated by the appellant that, he was persisting the respondent for payment through his general power of attorney holder, who is his brother. The general power of attorney holder was also insisting the respondent to pay the amount. The respondent paid a sum of Rs. 10.00 lakhs by a Banker's cheque dt.16.08.2006 bearing No.230908 of Bank of Baroda, John Nagar, Bangalore- 560 034, favouring the appellant-complainant. Apart from the above said amount of Rs. 10.00 lakhs, the respondent has not paid any amount out of Rs. 70.00 lakhs. As such, the respondent was due in a sum of Rs. 60.00 lakhs to the appellant. It is further stated by the appellant that, through his general power of attorney holder, he was constantly pursuing the respondent to pay the balance amount of Rs. 60.00 lakhs. In this regard, the respondent issued two cheques bearing No.653705 dt.09.12008 drawn on Bank of Baroda, John Nagar, Bangalore 560 034 for a sum of Rs. 30.00 lakhs and another cheque bearing No.121708 dt.18.10.2008, drawn on Sree Charan Souharda Co- Operative Bank Ltd., H.B.Samaja Road, Basavangudi, Bangalore 560 004 for a sum of Rs. 30.00 lakhs towards the discharge of the above said obligation to repay. This appeal is with regard to the dishonor of the cheque of Bank of Baroda. The appellant has filed another appeal with regard to the cheque of Sree Charan Souharda Co- Operative Bank Ltd., which was the subject matter of CC No.12052/2009. The appellant has further stated that, his power of attorney holder, Shri Shivanna D. Hulgur was informed by the respondent to present the cheques on or after 05.02009. Accordingly, the appellant presented the above said cheques for encashment through the his banker on 06.02009. The above said cheque of Bank of Baroda is returned by the bankers of the accused, dishonored on the ground of insufficiency of funds in the account of the respondent on 06.02009 itself. The intimation of the return of the cheque was given to the appellant on 06.02009. The appellant caused issuance of a legal notice dated 16.02009 to the respondent calling upon him to make payment of the cheque amount of Rs. 30.00 Lakhs within 15 days from the date of receipt of the notice. The said legal notice was dispatched through RPAD on 16.02009, which was delivered on 19.02009. Though the notice was served on the respondent on 19.02009, the respondent did not either pay the cheque amount of Rs. 30.00 lakhs nor did he reply to the legal notice. The appellant filed PCR No.6869/2009 on 28.03.2009. The counsel for the appellant-complainant received an untenable reply dated 28.3.2009 on 31.03.2009 to the legal notice dated 16.02009. Reply is issued beyond the statutory period. The sworn statement of the power of attorney holder of the appellant was recorded on 01.06.2009 and the case was numbered as CC No.12053/2009.

(3.) Then the learned Magistrate heard the arguments of both sides and after considering the materials placed before him, both oral and documentary, acquitted the respondent-accused for the offence punishable under Section 138 of the N.I. Act and bail bond of the accused was cancelled. Being aggrieved by the judgment and order of acquittal passed by the learned Magistrate and also challenging the legality and correctness of the said judgment and order on the grounds as mentioned in the appeal memorandum at ground Nos.18 to 49, the appellant-complainant is before this Court in this appeal.