UNNIKRISHNAN S/O. SREEDHARAN, AGED 48 YEARS, PADMASREE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM Vs. JAYARAM, S/O. LEKSHMANAN, JAYA NIVAS, TC 31/387, ATTUVARAMBU, ANAYARA P.O., THIRUVANANTHAPURAM

JUDGEMENT

(1.) The petitioner herein is the sole accused in C.C. No. 227/2014 on the file of the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram, for offence punishable under Sec. 138 of the Negotiable Instruments Act, instituted on the basis of a complaint preferred by the 1st respondent. The case projected in the petition broadly as follows. That as per Anx. A-2 agreement for sale dated 16.12.2013 entered into between the petitioner-accused and the respondent-complainant, an extent of 13.500 cents of property which originally stood in the name of one Sri. Jayanathlal was agreed to be sold in favour of the petitioner-accused or his nominees by the complainant, who was the power of attorney holder of the said Sri. Jayanathlal. The period fixed for the performance of Anx. A-2 agreement was 4 months from the date of agreement (16.12.2013). An amount of Rs.7.5 lakhs was paid by the petitioner-accused to the complainant, who has received the same towards sale consideration and as per the covenants stipulated in the agreement for sale, the balance consideration has to be paid within a period of 4 months from the date of execution of the agreement, failing which it is made clear that the agreement for sale would cease to operate and that the amount of Rs.7.5 lakhs which was paid by the petitioner towards advance sale consideration would be forfeited by the vendor. That before the due date fixed for performance of agreement for sale, R-1 complainant demanded the amount to the tune of Rs.17.35 lakhs from out of the total amounts due to be paid towards the balance sale consideration covered by Anx.A-2 agreement for sale. That a cheque for an amount of Rs.17,35,000.00 towards the part sale consideration was handed over in favour of the complainant and the said cheque was dishonoured. Further that the complainant thereafter had unilaterally withdrawn from the terms and conditions from the said agreement of sale and sold the entire extent of property covered by the agreement for sale to a person other than the accused and forfeited the amounts received as advance and thereafter proceeded to initiate actions against the petitioner for the offence under Sec. 138 of the Negotiable Instruments Act, before the learned Magistrate, which resulted in the impugned criminal proceedings for the offence under Sec. 138 of the Negotiable Instruments Act. Anx. A-1 is the impugned complaint filed in this regard by the 1st respondent.

(2.) It is contended by the petitioner that the cheque is not issued in discharge of a legally enforceable debt and there is no debt or liability existed as on the date of issuance of the cheque (16.4.2014) and that the cheque is issued towards the amount due by way of balance sale consideration covered by the agreement for sale and that the same would not attract the offence under Sec. 138 of the Negotiable Instruments Act, even if the cheque is dishonoured. Therefore, the learned Magistrate has committed illegality in issuing summons to the petitioner. It is in the light of these aspects, that the petitioners has preferred the instant Crl. M.C by invoking the powers conferred on this Court under Sec. 482 of the Cr.P.C with the prayer that this Court may call for the records leading to the impugned Anx. A-1 complaint and quash the same, etc.

(3.) After issuing notice in this matter, the 1st respondent had entered appearance. According to the contentions urged by the 1st respondent-complainant, the petitioner-accused and R-1 complainant had entered into Anx. A-2 agreement for sale dated 16.12.2013 and as per the agreement, R-1 had agreed to sell 15 cents of property @ Rs.10 lakhs/cent to the petitioner or his nominees within a period of 4 months. Advance amount of Rs.7.5 lakhs was paid by the petitioner-accused to the 1st respondent-complainant at the time of executing Anx. A-1 agreement. The balance amount was agreed to be paid at the time of execution and registration of the sale deed. Thereafter, the petitioner-accused had instructed the complainant that the sale deeds are to be executed and registered in favour of 2 nominees nominated by the petitioner in terms of the agreement and that the petitioner had thus arranged 2 buyers to whom the properties are to be conveyed by the complainant. That accordingly, on 16.4.2014, the petitioner had given another amount of Rs.17 lakhs as cash and the balance amount of Rs.17.35 lakhs by way of the impugned cheque in question towards entirety of the balance sale consideration. Since the petitioner had paid the entire balance amount partly by cash and partly by the impugned cheque, the 1st respondent had executed and registered the sale deed No.1456/14 (in respect of 550 cents) in favour of K.S. Unnikrishnan Nair and Smt. P.B. Priyadarshini, (both of whom are the nominees nominated by the petitioner in terms of the agreement) and further that sale deed No.1457/14 was also executed and registered by the 1st respondent in respect of 8.425 cents in favour of one Sri.P.Dileep Kumar (another nominee nominated by the petitioner in terms of the agreement) and that thus sale deeds were executed in favour of the nominees of the petitioner in terms of Anx. A-2 agreement on 16.4.2014 and those sale deeds were registered on the next working day on 19.4.2014, etc. That it was only later when the said cheque for an amount of Rs.17.35 lakhs was presented before the bank concerned, that the 1st respondent was intimated regarding the dishonour of the cheque, etc. On this basis, it is contended that the facts of the case are not in respect of a transaction involving a mere agreement for sale but that a full fledged sale had fructified on the basis of the terms and conditions in Anx. A-2 agreement for sale. That apart, from the initial advance amount to the entire balance sale consideration was paid partly in cash and partly by cheque on 16.4.2014 which resulted in the execution of the sale deed in favour of the nominees of the petitioner on 16.4.2014 and its subsequent registration on 19.4.2014.