Bangalore District Court
Smt.Nethravathi vs Sri.R.Janakiram on 1 February, 2020
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
PADMA PRASAD, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 1ST DAY OF FEBRUARY, 2020.
C.C.No.57109/2018
COMPLAINANT : Smt.Nethravathi,
W/o Sri.K.G.Srinivasa Murthy,
Aged about 36 years,
R/at No.21, Venkata Prasiddi,
1st Cross, Kaggadasapura,
C.V.Raman Nagar Post,
Bengaluru - 560 093.
.Vs.
ACCUSED : Sri.R.Janakiram,
S/o Sri.Anjinappa,
Major,
Occupation Real Estate Agent
R/at No.249, 1st Main,
Mallesh Palya,
Bengaluru - 560 075.
****
JUDGMENT
This complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2C.C.No.57109/2018
2. The complaint case in nutshell is that the accused is a real estate agent by occupation , colluding with one Smt.Vyjayanthimala created some documents in respect of the property bearing no.10, HASB Katha No.377, Measuring East to West: 40 Feet, North to South:60 Feet, situated at 9th Cross, Kaggadasapura, Bengluru and approached complainant for a sale of the above said property. Accordingly, the complainant believing the words of accused purchased the property under a registered sale deed. Thereafter when the complainant approached the B.B.M.P for transfer of Khatha in her name, she found that the property has been registered on the basis of fake and fabricated documents created by accused and Smt.Vyjayanthimala hence, immediately the complainant approached the accused and Smt.Vyjayanthimala and requested to return the sale consideration and expenses incurred in purchase of property. On enquiry the said Smt.Vyjayanthimala pleaded guilty and came forward to return the sale consideration amount that has been paid to her at the time of execution of sale deed. Meantime, the 3 C.C.No.57109/2018 complainant claims that the accused has received the commission amount of Rs.14,00,000/ at the time of execution of sale deed and he agreed to return the same and executed a settlement agreement on 13.12.2017 wherein he has paid Rs.2,00,000/ in cash for the balance amount of Rs.12,00,000/ issued and cheque bearing No.836759 drawn on Oriental Bank of Commerce, HAL III Stage, New Thippasandra Branch. The complainant further claimed that all of a sudden this accused issued a notice to the complainant on 22.03.2018 denying the issuance of cheque and asked the complainant to return the cheque for which the complainant has given reply etc. The complainant further claims that this complainant presented the aforesaid cheque for encashment that has been returned with bank endorsement dtd:04.04.2018 stating "Drawers Signature Differs". When the complainant received the said bank endorsement, he has approached the accused and informed him about the dishonor of cheque and at that time the accused and Panchayathdars sought another 2 months to repay the said cheque amount. Accordingly, the 4 C.C.No.57109/2018 complainant has presented the said cheque again on 18.06.2018 and the said cheque returned with bank endorsement dtd:19.06.2018 stating "Payment stopped by drawer". Subsequently, the complainant caused a legal notice to the accused on 22.06.2018 that has been returned with postal endorsement stating "Incomplete address". The complainant further claimed that he has sent the notice to the accused through professional courier that has been duly served on the accused. In spite of the service of notice, the accused failed to comply with the notice. Hence, filed this complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court 5 C.C.No.57109/2018 bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined her power of attorney holder as P.W.1 and 2 witnesses as P.W.2 and 3 and got marked document at Ex.D.1 to 11. The accused not led defense evidence but got marked Ex.D.1 document on his behalf.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"6
C.C.No.57109/2018
8. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
9. The complaint case in nutshell is that the accused is a real estate agent by occupation, colluding with one Smt.Vyjayanthimala created some documents in respect of the property bearing no.10, HASB Katha No.377, Measuring East to West: 40 Feet, North to South:60 Feet, situated at 9th Cross, Kaggadasapura, Bengluru and approached complainant for a sale of the above said property. Accordingly, the complainant believing the words of accused purchased the property under a registered sale deed. Thereafter when the complainant approached the B.B.M.P for transfer of Khatha in her name, she found that the property has been registered on the basis of fake and fabricated documents created by accused and Smt.Vyjayanthimala hence, immediately the complainant approached the accused and 7 C.C.No.57109/2018 Smt.Vyjayanthimala and requested to return the sale consideration and expenses incurred in purchase of property. On enquiry the said Smt.Vyjayanthimala pleaded guilty and came forward to return the sale consideration amount that has been paid to her at the time of execution of sale deed. Meantime, the complainant claims that the accused has received the commission amount of Rs.14,00,000/ at the time of execution of sale deed and he agreed to return the same and executed a settlement agreement on 13.12.2017 wherein he has paid Rs.2,00,000/ in cash for the balance amount of Rs.12,00,000/ issued and cheque bearing No.836759 drawn on Oriental Bank of Commerce, HAL III Stage, New Thippasandra Branch. The complainant further claimed that all of a sudden this accused issued a notice to the complainant on 22.03.2018 denying the issuance of cheque and asked the complainant to return the cheque for which the complainant has given reply etc. The complainant further claims that this complainant presented the aforesaid cheque for encashment that has been returned with bank endorsement dtd:04.04.2018 stating "Drawers 8 C.C.No.57109/2018 Signature Differs". When the complainant received the said bank endorsement, he has approached the accused and informed him about the dishonor of cheque and at that time the accused and Panchayathdars sought another 2 months to repay the said cheque amount. Accordingly, the complainant has presented the said cheque again on 18.06.2018 and the said cheque returned with bank endorsement dtd:19.06.2018 stating "Payment stopped by drawer". Subsequently, the complainant caused a legal notice to the accused on 22.06.2018 that has been returned with postal endorsement stating "Incomplete address". The complainant further claimed that he has sent the notice to the accused through professional courier that has been duly served on the accused. In spite of the service of notice, the accused failed to comply with the notice. Hence, filed this complaint.
10. The complainant in support of her case examined her power of attorney holder as P.W.1 and 2 witnesses as P.W.2 and 3 by adopting the sworn statement. The complainant also got marked 9 C.C.No.57109/2018 documents at Ex.P.1 to 11. The Ex.P.1 is the power of attorney, Ex.P.2 is the original cheque, Ex.P.3 and 4 are 2 bank return memos, Ex.P.5 is the O/c of the legal notice, Ex.P.6 is the postal receipt, Ex.P.7 is the courier receipt, Ex.P.8 is the returned postal cover, Ex.P.9 is the notice dtd:22.03.2018, Ex.P.10 is the reply to the notice, Ex.P.11 is the settlement agreement. On the basis of above documents the complainant claims that the case has been proved by the complainant beyond reasonable doubt.
11. It is true that the cheque has been presented for encashment in time, the legal notice issued in time and even the complaint is in time but in the case on hand the accused disputed his signature in the cheque as well as voluntary issuance of cheque in favour of the complainant. Apart from that the cheque twice bounced and for the 1st time the cheque has been bounced for the reasons that there was a difference in the signature and the 2nd time the cheque has been bounced for the reason stop payment instructions by the accused. Apart from that in the case on hand even according to the 10 C.C.No.57109/2018 complaint averments at para No.3, page No.3 and notice at Ex.P.9, the accused asked the complainant to return the cheque prior to the date of cheque as well as presentation of cheque for encashment. Hence, the burden is on the complainant to prove that there was a transaction as claimed in the complaint and the cheque has been voluntarily issued by the accused in favour of the complainant towards the discharge of legally enforceable debt.
12. The accused though not led any defense evidence made out a case during his trial is that in the month of March 2018, the complainant along with other rowdy elements approached him and asked him to return the money and forcibly taken away Rs.2,50,000/ from him and also taken away the blank cheque threatening to pay the amount to the complainant on or before 01.04.2018 and if the complainant fails to pay the amount they will put off the life of the accused etc. Accordingly, the accused claims that he has issued the notice to the complainant to return the cheque as well as issued the stop payment instructions to his banker The 11 C.C.No.57109/2018 accused also disputed the claim of the complainant that there was a defect in the title of the property sold to the complainant and further claimed that there was a rectification deed between the complainant and other vendor. The accused further claimed that after the execution of rectification deed this complainant again sold the property to others and accordingly, claimed that he is not liable to make any payment or the cheque amount to the complainant. Accordingly, prayed for dismissal of complaint.
13. In this case the sale transaction claimed in the complaint is admitted fact. It is also admitted and proved fact that there was a role of accused in selling the property bearing No.10, HASB Katha No.377, Measuring East to West: 40 Feet, North to South:60 Feet, situated at 9th Cross, Kaggadasapura, Bengluru to the complainant by one Smt.Vyjayanthimala. The other facts are denied by the accused. The main grievance of the complainant in this case is that there was a defect in the title or the sale deed has been executed in her favour on the basis of fake and fabricated documents. Hence, there was no valid sale 12 C.C.No.57109/2018 deed. A such, she approached the vendor and the accused for the repayment of money paid to them. Hence, the burden is on the complainant to prove that there was a defect in the title and the sale deed has been executed by creating the documents. As such the complainant as well as the accused is liable to return the money.
14. It is also admitted fact that the accused is a real estate agent and he used to deal the property transaction for brokerage. The accused is not the owner of property that has been sold to the complainant. The role of the broker is limited to show the properties or to introduce the purchaser to seller or seller to purchaser. Thereafter the burden is on the purchaser to look into the papers and title of the seller and thereafter purchaser has to purchase the property if the purchaser satisfy with the title of seller of property. Apart from that sale transaction are based on the legal principal "Caveat emptor" that means buyers beware. Therefore entire responsibility is on the buyer of the property to verify all the documents and the buyer must ascertain that the 13 C.C.No.57109/2018 seller has clear marketable title on the property and thereafter to purchase the property and the purchaser of the property cannot blame the broker or commission agent. Therefore, the role of the commission agent or broker in a transaction is limited and the commission agent or broker is only interested in his commission and no other things. Under such circumstances, the burden is on the complainant to prove that she has paid the commission of Rs.14,00,000/ to the complainant and the accused is liable to be repaid.
15. The entire case of the complainant is totally based on the settlement agreement dtd:13.12.2017. The said document is totally disputed by the accused. The complainant in support of said document also examined witnesses as P.W.2 and 3. All of them stated that the said document has been executed near the typing pool at City Civil Court. The accused disputed his signature in the said document and it is relevant to note that the signature found in Ex.P.1(a) almost tallies with the signature found in cheque Ex.P.2(a). It is relevant to note that said signature in 14 C.C.No.57109/2018 the cheque Ex.P.2 initially not accepted by the bank when the cheque has been presented for encashment. Admittedly, the bank for the first time returned the cheque with endorsement stating that there is a difference in the signature of the accused. Therefore, the signature in the cheque itself is not proved by the complainant and apart from that the accused from the day one disputed his signature in the cheque. It is also relevant to note that even prior to the presentation of cheque for encashment the accused raised the foulplay in obtaining the cheque by causing a notice to the complainant dtd:22.03.2018 calling upon the complainant to return the cheque. Therefore, mere production of document at Ex.P.11 settlement agreement itself does not prove the claim of the complainant.
16. The main grievance of the complainant in the complaint para no.2 is that the sale deed has been executed in her favour by Smt.Vyjayanthimala on the basis of fake and fabricated document. The execution of said document is not in dispute. The admission given by P.W.1 in his examination discloses that the 15 C.C.No.57109/2018 sale deed has been executed on 27.10.2017. It is relevant to note that the complainant has not produced the original sale deed or certified copy of the sale deed that has been executed by Smt.Vyjayanthimala in favour of the complainant. According to the claim of the complainant the matter has been settled on 13.12.2017 wherein this accused agreed to repay the commission amount of Rs.14,00,000/. As already stated above, the main grievance of the complainant is that the document / sale deed has been executed on the basis of fake and fabricated documents, what are those fake and fabricated documents are not explained by the complainant till this date. It is relevant to note that the claim of the complainant can be entertained if the complainant is unable to get the Khatha of purchased property in her name. If at all property has been changed to her name on the basis of sale deed certainly this accused or vendor not liable to repay the consideration amount or the alleged commission amount to the complainant.
16C.C.No.57109/2018
17. It is relevant to note that the accused made out a claim that subsequent to the execution of sale deed; there was a rectification deed between the complainant and the vendor as on 09.03.2018. The execution of said rectification deed is an admitted fact in this case. This accused got marked the photostat copy of the rectification deed at Ex.D.1 on confrontation to the P.W.1 during his cross examination. As per the said rectification deed the western boundaries of the property purchased by the complainant has been rectified. If the sale deed has been created on the basis of fake and fabricated document certainly this complainant would not have agreed for the execution of rectification deed at Ex.D.1. The execution of Ex.D.1 rectification deed itself shows that the title of the complainant's vendor is perfect and document is not at all executed on the basis of fake and fabricated document.
18. It is also relevant to note that the property purchased by the complainant has been sold by her subsequently. If there were no title has been passed to the complainant on the basis of her sale deed, 17 C.C.No.57109/2018 certainly it is impossible for her to sell the property. In this context it is useful to refer some admissions given by P.W.1 during his cross examination. The P.W.1 during his cross examination dtd:18.06.2019 at page No.2, 9th line onwards given an admission that reads as;
"It is true that as per the recital said sale deed we have obtained the all the documents relating to the said property and also taken the possession of the property that has been purchased in the name of my wife. It is true that after the purchasing of property in the name of my wife the said property is in possession of my wife from the date of purchase. The said property is not with us and we have sold the said property in the year 2018 to one Shivaprakash. It is true that said Shivaprakash is relating to peacock developers"
19. Similarly at page No.7, last paragraph the admission given by P.W.1 reads as;
18C.C.No.57109/2018 "It is true that my wife sold the property in site No.10 to one Shivaprakash that is found in BBMP online. Aforesaid Shivaprakash has not taken any action against me or my wife stating that the document executed by me on the basis of bogus document".
20. Even the P.W.3 also admitted that the property purchased by the complainant has been sold to others. Therefore, this court is unable to understand how this complainant sustained loss or affected by the sale deed. If at all the sale deed has been executed on the basis of bogus document, certainly she wold not have acquired the possession of property and she would not have sold the property subsequent to her purchase.
21. In the case on hand the accused disputed the receiving of Rs.14,00,000/ as a commission from the complainant. When the accused disputed the receiving of commission of Rs.14,00,000/ as claimed in the complaint, the burden shifts on the 19 C.C.No.57109/2018 complainant to prove that complainant has paid Rs.14,00,000/ as a commission to the property. The P.W.1 who is the husband / GPA holder of the complainant in his cross examination claimed that they have paid Rs.6,00,000/ to the accused through cheque and if it were so Rs.8,00,000/ have been paid in cash. Of course there may not be any document to show the payment of Rs.8,00,000/ in cash but certainly the complainant would have produced the document to show the payment of Rs.6,00,000/ that has been made through cheque. In spite of the disputing the said payment the complainant has not chosen to produce any document to show that the complainant has paid Rs.6,00,000/ to the accused through cheque.
22. Now, how the commission amount has been fixed has to be considered in this case. The complainant not at all made out any case to show that how the party decided the commission amount. The complainant got examined P.W.2 Rajashekhar in support of its case. According to the evidence affidavit of P.W.2 at page No.2, first 6 lines speaks 20 C.C.No.57109/2018 about the commission regarding the sale that reads as;
"ತದ ನನತರ ಆರರರರಪಯಯದ ಜಯನಕರಯಮಮ ಇವರರ ನಯನರ ಖರರದದಯರರನದ ಒನದರ ಅಡಗರ 500/ ಗಳನತರ ಕಮರಷನಮ ಪಡರಯರತರತರನರ ನರನರ ಮಯರಯಟದಯರರನದ ಎಷರಷ ಬರರಕರರರ ಅಷರಷ ಕಮಷನಮಅನರನ ನರನರರ ಕರರಳ ಪಡರದರಕರರ ಎನದರ ಹರರಳದನರ . ನಯನರ ಮಯರಯಟಗಯರರನದ ಒನದರ ಅಡಗರ ರರ.200/ ಗಳನರನ ಕಮರಷನಮ ರರಪದಲಲ ಮಯತನಯಡಕರರನಡರ ನಯವಬಬರರ ಸದರ ಕಮಷನಮ ಪಡರದರ,"
23. If the said rate of commission is accepted then the complainant has to explain that how and which property he has purchased. The complaint averment discloses that the sale transaction was in respect of the property measuring 40 X 60 Sq. Ft. If the site is measuring 40 X 60 Sq. Ft then the actual measurement of the site is 2400 Sq. Ft. If the 2400 Sq. Ft multiplied with Rs.500/ towards the commission then it will comes to Rs.12,00,000/. If the claim of the complainant itself is accepted, the complainant is required to pay Rs.12,00,000/ as commission and not as Rs.14,00,000/. It is also relevant to note that P.W.2 claimed that he has 21 C.C.No.57109/2018 received the commission at the rate of Rs.200/ per Sq. Ft. If it were so, the complainant ought to have paid Rs.4,80,000/ to said P.W.2. There is no material on record to show that whether said P.W.2 has repaid the said commission of Rs.4,80,000/ to the complainant or not.
24. It is also relevant to note that the cheque is dated 01.04.2018 and in this case the accused prior to the date of cheque issued a notice to the complainant as per Ex.P.9 dtd:22.03.2018 and in the said notice at para No.6 the accused claimed that the complainant though agreed to purchase the entire site at the 1st instance not purchased the entire site but only purchased ½ site by selling the ½ site to one Nagarathna. If it were so, the complainant has purchased only ½ site measuring 1200 Sq. Ft. In this case the accused produced the rectification deed executed by the vendor to the complainant in favour of the complainant at Ex.D.1. The said Ex.D.1 also discloses that this complainant has purchased only 1200 Sq. Ft i.e., measuring East - West 40 Ft and North - South 30 Ft. Therefore, the complainant has 22 C.C.No.57109/2018 purchased only 1200 Sq. Ft. If it were so, the commission to be paid to the accused is only Rs.6,00,000/ if the commission fixed at Rs.500/ per Sq. Ft. Even the said fact falsifies the claim of the complainant.
25. It is also surprising to note the rate of the commission claimed by the complainant and P.W.2 that has been allegedly paid to the accused as well as P.W.2. The P.W.2 during his cross examination at page No.3 stated that the rate of the property purchased by the complainant is Rs.1,500/ Sq. Ft. As per Ex.D.1 the complainant has purchased only 1200 Sq. Ft. If it were so, the value of the said property is Rs.18,00,000/ and the complainant claims that she has paid Rs.14,00,000/ as commission to the accused. Apart from that as per the evidence of P.W.2 this complainant has to pay Rs.2,40,000/ as commission to him. If it were so, the complainant has almost paid Rs.16,40,000/ as commission though the price of the property is only Rs.18,00,000/. Therefore, this fact cannot be accepted by any means. It is also relevant to note 23 C.C.No.57109/2018 that the complainant has not produced the sale deed to show that what is the actual extent purchased by her or what is the actual sale consideration has been paid by her to the property purchased by her. The accused made out a case in his notice at Ex.P.9 that ½ of the property has been sold to one Nagarathna. The rectification deed produced by the accused at Ex.D.1 discloses that the complainant has only purchased 1200 Sq. Ft. The rectification deed document is registered under No.BK10870/201718. The said document also contains a copy of the rectification deed executed in favour of Smt.N.P.Nagarathna. As per said document the rectification deed has been executed in favour of the Nagarathna has been registered under No.BK/10869/201718. Therefore, the complainant has not at all purchased entire property. Hence, there is no necessity for the complainant to pay the commission to the entire extent of property. If Nagarathna has purchased the property then Nagarathna has to pay the commission to the accused and P.W.2 to the extent of property purchased by her but there is no material on record 24 C.C.No.57109/2018 to show that Nagarathna also paid any commission to the accused or complainant. It is also not the case of the complainant that she has paid commission on behalf of the Nagarathna also and she has to repay the said commission to Nagarathna also. Under such circumstances the claim of the complainant that she has paid Rs.14,00,000/ as commission certainly cannot be accepted.
26. In the case on hand, as discussed earlier, the claim of the complainant is totally based on settlement deed dtd:13.12.2017. The said document has been seriously disputed. As per the rectification deed, the said rectification deed has been executed on 05.03.2018 which is subsequent to 13.12.2017. The exeuction of said rectification deed is within the knowledge of the complainant prior to the filing of the complaint. It is also relevant to note that as per the admission of P.W.1; subsequent to the rectification deed the complainant has sold the property purchased by her. In spite of that all those facts have been suppressed by the complainant from the court. Why the complainant has suppressed the execution 25 C.C.No.57109/2018 of rectification deed as well as sale of property purchased by her without any explanation. The said fact certainly creates serious doubt regarding the execution of settlement agreement as claimed by the complainant.
27. The accused totally disputed the issuance of cheque voluntarily in favour of the complainant for a sum of Rs.12,00,000/. The specific claim of the accused is that the said document has been created. It is relevant to note that as per settlement agreement the settlement agreement has been executed on 13.12.2017 but the stamp duty of Rs.1,400/ has been paid on 05.01.2017 by the complainant. Why this complainant has purchased the stamp paper and paid the stamp duty of Rs.1,400/ as on 05.01.2017 is without any explanation. If the said date in the document is accepted, the stamp duty has been paid almost 11 months prior to the execution of said document. Even the said fact creates a doubt about the said document.
26C.C.No.57109/2018
28. The accused as per his notice dtd:22.03.2018 at para No.7 made out a case that this complainant along with rowdy elements approached the accused with the document titled as settlement agreement dtd:13.12.2017 duly typed on a document sheet asked him to pay the money and sign the document and also claimed that blank cheque has been forcibly taken from him by giving threat to the accused to make the payment of Rs.12,00,000/ on or before 01.04.2018. Therefore, prior to the filing of complaint itself this accused made out a case that cheque has been forcibly obtained from him. In fact the accused also called upon the complainant to return the cheque prior to the date mentioned in the cheque. Hence, it has to be inferred that the conduct of the accused shows that he has acted immediately after the receiving of cheque by the complainant calling upon the complainant to return the cheque. In spite of that the complainant has presented the cheque not once but twice for encashment.
29. It is relevant to note that the signature in the cheque is also not admitted by the complainant and 27 C.C.No.57109/2018 from the beginning itself this accused disputed the signature in the cheque as well as settlement agreement. It is also relevant to note that for the first time the complainant presented the cheque for encashment in the month of April itself and the said cheque returned with bank endorsement dtd:04.04.2018 stating drawers signature differs. Therefore, in the first instant itself the Ex.P.1 cheque returned particularly on the ground that signature found in the cheque is not the signature of accused or the signature in the cheque not tallies with the specimen signature of the accused. Apart from that the accused also issued a notice to the complainant to return the cheque.
30. The complainant presented the said cheque again in the month of June 2016 and at that time the cheque has been returned with bank endorsement dtd:19.06.2018 stating payment stopped by drawer. The reason assigned by the complainant in the complaint for re presentation of cheque for encashment is that after the bouncing of cheque in the month of April is that the complainant 28 C.C.No.57109/2018 approached the accused and informed him about the bouncing of the cheque and difference in the signature, the accused told the complainant to represent the cheque. The said fact certainly cannot be accepted in view of the issuance of legal notice prior to the date of cheque. The cheque dtd:01.04.2018. The accused issued the notice to the complainant to return the cheque as on 22.03.2018 as per Ex.P.9 for which the complainant has issued the reply as on 26.03.2018 as per Ex.P.10. Therefore, there is a serious dispute regarding the issuance of cheque between the the parties prior to the date of cheque. Apart from that the cheque has been returned for the 1st time as there is a difference in the signature in the cheque. Therefore, if there were any settlement as claimed by the complainant certainly the complainant would insisted the accused to issue fresh cheque with proper signature or there may be some document in the nature of settlement agreement or any document for having been approached the accused after the bouncing of cheque for first time or the accused informed the complainant to represent the cheque.
29C.C.No.57109/2018 In fact if the materials on record is accepted, certainly it is impossible to accept that the accused authorized the complainant to represent the cheque for encashment. Considering the materials n record, the complainant ought to have proceeded with the case immediately after the bouncing of the cheque for the first time in the month of April 2018.
31. All the above discussed facts certainly probablise the defense of the accused than the case of complainant. Apart from that viewed from any angle it is impossible to accept that the person can pay the commission at the rate of Rs.700/ per Sq. Ft. when the property value is Rs.1,500/ per Sq. Ft. if the evidence of P.W.2 is accepted almost half of the consideration of property has been paid as a commission which cannot be accepted by any means. Further, the complainant has also not produced any material on record to show that the complainant has paid Rs.14,00,000/ as a commission to the complainant. Apart from that the amount claimed by the complainant is a commission. Admittedly, the sale transaction has been completed between the 30 C.C.No.57109/2018 complainant and her vendor. Subsequently, the complainant has sold the property to others. When such is the case the question of refunding the commission certainly does not arise. Even if it is viewed from said angle also the complainant is not liable to repay the amount and the amount stated in the cheque is certainly not a legally enforceable debt.
32. It is also relevant to note that there is no material on record to show that Smt.Nagarathna who has also purchased half of the property has initiated any legal action against her vendor or this accused. Of course the complainant during the course of cross examination claimed that the suit is pending before the court but that does not mean that there was no subsequent sale of property by the complainant. Therefore, for aforesaid reasons discussed on detail this court is of the humble opinion that the defense of the accused is more probable than the case of the complainant. Apart from that there is no material on record to show that the complainant has paid Rs.14,00,000/ or the accused agreed to repay the amount as claimed in the complaint. Hence, this 31 C.C.No.57109/2018 court is of the humble opinion that the complainant has failed to prove his case beyond reasonable doubt. Accordingly I answer the above point in "Negative". In the result, following;
ORDER Acting under Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Sec.138 of Negotiable Instrument Act.
The bail bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 1st day of February, 2020) (PADMA PRASAD), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Smt.Nethravathi
P.W.2 : Rajashekar
P.W.3 : V.Babu
32
C.C.No.57109/2018
2. Documents marked on behalf of complainant:
Ex.P.1 : Power of Attorney Ex.P.2 : Original cheque
Ex.P.2(a) : Signature of the accused Ex.P.3 & : Two bank return memos Ex.P.4 Ex.P.5 : O/c of the legal notice Ex.P.6 : Postal receipt Ex.P.7 : Courier receipt Ex.P.8 : Returned postal cover Ex.P.8(a) : Returned postal notice Ex.P.9 : Notice dtd 22.03.2018 Ex.P.10 : Reply to the notice at Ex.P.9 Ex.P.11 : Settlement agreement
3. Witnesses examined on behalf of Accused:
Nil
4. Documents marked on behalf of Accused:
Ex.D.1 : Rectification deed (PADMA PRASAD), XXXIII ACMM, BENGALURU.