M. MOHAN RAO Vs. BHEEMSHETTY SREEDHAR AND ANOTHER

JUDGEMENT

(1.) The revision petitioner is the sole accused in C.C.No. 216 of 2012 on the file of Special Magistrate V, Hyderabad, which is for the offence under Sec. 138 of the Negotiable Instruments Act (for short the Act) and taken cognizance from the private complaint of the revision 1st respondent-complainant based on Ex.P11-cheque bearing No. 601175 dated 05.12.2011 for Rs. 5,00,000.00 which is claimed towards the part payment of out of the total amount of Rs. 35,00,000.00 based on memorandum of understanding-cum-deed of compromise dated 03.02.2011 under Ex.P10, which is outcome of contract for sale-cum-GPA dated 07.04.2011 Ex.P1 in relation to the property covered by original of Ex.P3-sale deed dated 02.12.2010.

(2.) The factual background show the complainant entered into said sale agreement-GPA with 4 persons viz., Smt. R.Rani, N.R. Nareder, N.R. Ravinder and S.Dhanalaxmi in relation to open plot of 272 square yards in survey Nos. 39 & 40, Kakaguda Village of Secunderabad and for consideration of Rs. 35,00,000.00 and on came to know of said property already sold by the said vendors collusively to the accused under original sale deed supra, the complainant demanded for refund of the amount from all including the accused and on their refusal, there was a criminal case for the offence of cheating and criminal breach of trust and also police registered the crime and pending crime, there was a compromise where under the accused promised to pay Rs. 35,00,000.00 for final settlement of the amount due to the complainant vide the MOU-compromise deed dated 03.12011 supra and issued the Ex.P11-cheque in question and when presented the same was returned dishonoured on the ground of stop payment, on 08.12011 and from the statutory legal notice sent to the accused returned as unclaimed from the accrual of cause of action filed the complaint.

(3.) After sworn statement recorded, the learned Magistrate has taken cognizance for the offence by taken case on file and after supply of copies and from examination of accused and on his denial of the accusation put to trial. In the course of trial, the complainant came to the witness box as PW.1 and placed reliance on 22 documents including those materially relevant referred supra. From said evidence and after hearing both sides, the trial Court held that the cheque is routed from the account undisputedly and it is in settlement of the amount due for the sale agreement outcome of compromise and settlement, which is within the meaning of legally enforceable debt and the burden is on the accused also to rebut the presumptions and still to say how not liable by also referring to the expression of the Apex Court in K.N. Beena Vs. Muniyappan, 2001 (2) ALT (Crl.) 382 (SC) : 2001 Crl.L.J. 4745 and found him guilty for the offence and after hearing, sentenced to undergo six months rigorous imprisonment with payment of fine Rs. 10,000.00 with default sentence of 3 months saying out of said fine amount of Rs. 9,000.00 as compensation payable to the complainant.