Bangalore District Court
Sri. P.Lakshmana vs Sri. Niranjan C Shetty @ on 20 March, 2021
1
C.C.No.29908/2015 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 20th day of March, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.29908/2015
Complainant : Sri. P.Lakshmana,
S/o. Late G. Puttappa,
Aged about 46 years,
Residing at No.193/608,
2nd Phase, 5th Stage,
60 ft. Main Road,
BEML Layout,
Rajarajeshwarinagar,
Bangalore 560 098.
Rep. by Sri.T.R.Nagabhushana,
Advs.,)
Vs
Accused : Sri. Niranjan C Shetty @
Niranjan C.Jain,
S/o. Mr.Chandraraj.S,
Aged about 31 years,
No.28/35,18th Main,
Padmanabhanagar,
Bangalore 560 079.
2
C.C.No.29908/2015 J
and also at
Flat No.A403, 4th Floor,
CBH Gubbalala,
Subramanyapura Post,
Bangalore 560 068.
(Rep. by Sri. S.Muralidhar and
M.Anjana Murthy. Advs.,)
Case instituted : 25.11.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 20.3.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he is the absolute owner in possession of the property bearing site No.23, Katha No. 193, situated at Halage Vaderahalli Village, Kengeri Hobli, 3 C.C.No.29908/2015 J Bengaluru South Taluk, Measuing East to West 80 Feet and North to South 40 feet in all measuring 3200 q. ft, and bounded on East by site Nos.13 & 14, West by Road, North by: site No.22/A, and South by:
BEML property site No.605. The complainant further contends that, the accused is the Proprietor/ Developer and engaged in construction activities of Commercial and Residential Flat under the name and style of "Everjoy Properties" and the accused has approached him on 26.05.2012 and after deliberations a Joint Development Agreement came to be entered into between him and the accused, which came to be registered in the office of the Sub registrar of Rajarajeshwarinagar, Bengaluru. Vide document No.RRN102571201213 stored in CD No.RRND88, Book No.1, on 26.9.2012 he has also executed a GPA in favour of accused with a bonafide intention for undertaking the developmental work as agreed by the accused as per the terms and conditions stipulated in the Joint Development Agreement and as per the Joint development Agreement entered into between him and the 4 C.C.No.29908/2015 J accused, the project ought to have been completed within the stipulated period of 16 months from the date of the Joint Development Agreement, but, till date the accused has not completed the said project, except putting up pillars and roofing over the site and despite his repeated request and demand to speed up the construction activities, accused gave scant respect and never bothered to take up the construction and after mutual understanding, he has put up complete ground floor including the car park over the site on his own expenses by spending a huge sum of Rs.47 Lakhs and in the meantime after his several demands to the accused to adhere to the terms and condition stipulated in the Joint Development Agreement, he approached the accused and after several conciliations held between him and the accused in the presence of the wellwishers and friends of both of the parties, finally it was agreed to enter in to a MOU on 27.07.2015, even though the accused have committed in writing and agreed to complete the project within 3 months and also issued two post dated cheques bearing No.000236 for 5 C.C.No.29908/2015 J Rs.23,50,000/= and 000237 for Rs.23,50,000/=, dated 24.09.2015 respectively, both cheques were drawn on the HDFC Bank, M.K.Puttalingaiah Road, 2nd Stage, Bengaluru for the expenses incurred by him for the construction of the ground and the car parking with an assurance that the said cheques would be duly honored on their presentation on their respective due dates and as per the oral instructions and assurance of the accused he presented the cheque No.000236 for Rs.23,50,000/ through his banker i.e Bank of Maharashtra, Rajarajeshwari Nagar, Bangalore on 24.9.2015 and cheque No.000237 for Rs.23,50,000/ on 24.9.2015 though his banker i.e Karnataka Bank Ltd., BEML Layout Branch, Bangalore for encashment, both cheques were returned dishonoured as "Funds Insufficient"
vide Bank endorsement dated 25.09.2015 and 25.9.2015 respectively, thereafter he got issued two Legal Notice to the accused on 21.10.2015 through RPAD calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice and one of the notice sent by 6 C.C.No.29908/2015 J him through RPAD to the residential address of the accused has been duly served and another notice sent through RPAD to his office address has been returned unserved with a remark "Not claimed on 27.10.2015", thereafter the accused has replied to the notice dt:21.10.2015 on 31.10.2015 on untenable grounds and admitted the transactions held between complainant and the accused. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments of the complaint.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he 7 C.C.No.29908/2015 J pleaded not guilty and claims to be tried.
5. The complainant himself examined as PW.1 and he has filed his affidavit in lieu of his examinationinchief, in which he has reiterated the complaint averments. In support of his evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.14, i.e., Original Cheques dated: 24.09.2015 as per Ex.P.1 and P.2 respectively, the signatures on the said cheques identified by P.W.1 are those of the accused as per Ex.P.1(a) and P.2(a) respectively, the Bank Memos as per Ex.P.3 and P.4 respectively, office copy of the Legal Notice as per Ex.P.5, Reply notice as per Ex.P.6, Mutual Agreement as per Ex.P.7, 9 signatures of the accused on the said agreement as per Ex.P.7(a) and 9 signatures of the complainant on the said agreement as per Ex.P.7(b), complaint as per Ex.P.8, signature of the witness as per Ex.P.8(a) certified copies of the GPA dt: 26.9.2012 and Joint Development Agreement as per Ex.P.9 and P.10 respectively, 3 photos as per Ex.P.11 to P.13 respectively, CD as per Ex.P.14.
8C.C.No.29908/2015 J
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently he has not lead his rebuttal evidence. On his behalf he has produced certified copy of plaint in O.S.No.5189/16 as per Ex.D.1, certified copy of Notice as per Ex.D.2 and certified copy of Lease Agreement as per Ex.D.3.
7. Heard both sides and perused the materials placed on record.
8. On the basis of complaint, evidence of complainant and documents and having heard the arguments of learned counsel for the complainant and accused, the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued two cheques ie.
1) cheque bearing No.000236 dt:
24.09.2015 for sum of Rs.23,50,000/ 9 C.C.No.29908/2015 J
2) cheque bearing No.000237 dt:
24.09.2015 for sum of Rs.23,50,000/ both cheques were drawn on HDFC bank, Puttalingaiah Road branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheques for encashment through his banker but the said cheques have been dishonoured for the reasons "Funds Insufficient" on 25.09.2015 and 25.09.2015 respectively and the complainant issued legal notices to the accused on 21.10.2015 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:
REASONS
10. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present 10 C.C.No.29908/2015 J case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence.
11. In the present case, the Accused during the course of cross examination of the complainant has taken defence that, the complainant has not issued legal notice to the accused within 30 days from the date of receipt of bank memo, hence the legal notice alleged to have been issued by the complainant was not sent to him within the 11 C.C.No.29908/2015 J stipulated time as required U/s.138(b) of the N.I.Act. It is also seen from the documents produced by the complainant that, the cheques in dispute I.e Ex.P.1 and P.2 were returned as dishonoured on 28.09.2015 and 30.9.2015 respectively as per Ex.P.3 and P.4 and the legal notice was issued on 21.10.2015 as per Ex.P.5 though the complainant has produced the copy of legal notice dt:21.10.2015 ie. Ex.P.5 but has not produced the postal receipt or any other document to show that, the said legal notice dt: 21.10.2015 was dispatched or sent on the same day or within 30 days from the date of receipt of bank memo I.e on or before 30.09.2015. Therefore if the notice is not issued or sent within the statutory period, the complaint filed by the complainant itself is not maintainable and liable to be dismissed. On the other hand the complainant has contended that, he has complied all the ingredients of Sec.138 of Negotiable Instruments Act. Therefore before considering the facts of the present case it is just and proper to examine whether the complainant has sent legal notice to the Accused 12 C.C.No.29908/2015 J within 30 days from the date of receipt of the bank endorsement. In this regard, it is relevant here to reproduce Sec.138 of Negotiable Instruments Act which reads as under: Sec.138 dishonour of cheque for insufficiency, etc, of funds in the account - where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or in part , of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that, it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have been committed an offence and shall without prejudice to any other provision of this act, be punished with imprisonment for a term which may extend two 13 C.C.No.29908/2015 J years, or with fine which may extend to twice the amount of the cheque, or with both Provided that, nothing contained in this section shall apply unless -
1. The cheque has been presented to the bank within a period of six months/ three months from the date on which it is drawn or within the period of its validity whichever is earlier;
2. The payee or the holder in due course of the cheque as the case may be makes a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque , within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and ;
3. The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, 14 C.C.No.29908/2015 J to the holder in due course of the cheque within 15 days of the receipt of the said notice;
Explanation: For the purpose of this section "Debt or other liability" means a legally enforceable debt or other liability. Hence on plain reading of the above sec.138 of Negotiable Instruments Act makes it very clear that, in order to constitute an offence U/s.138 of N.I. Act it presupposes conditions for prosecution of an offence which reads under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from 15 C.C.No.29908/2015 J the date of receipt of such notice.
4. The drawer inspite of demand notice, fails to make payment within 15 days from the date of receipt of such notice If the above said conditions are satisfied by holder in due course, gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified that, he is the absolute owner in possession of the property bearing site No.23, Katha No.193, situated at Halage Vaderahalli Village, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 80 Feet and North to South 40 feet in all measuring 3200 sq. ft, and bounded on East by site Nos.13 & 14, West by Road, 16 C.C.No.29908/2015 J North by:Site No.22/A, and South by: BEML property site No.605. The complainant further testified that, the accused is the Proprietor/ Developer and engaged in construction activities of Commercial and Residential Flat under the name and style of Everjoy Properties and the accused has approached him on 26.05.2012 and after deliberations a Joint Development Agreement came to be entered into between him and the accused, which came to be registered in the office of the Subregistrar of Rajarajeshwarinagar, Bengaluru. Vide document No.RRN102571201213 stored in CD No.RRND88, Book No.1, on 26.9.2012 he has also executed a GPA in favour of accused with a bonafide intention for undertaking the developmental work as agreed to by the accused as per the terms and conditions stipulated in the Joint Development Agreement and as per the joint development agreement entered into between him and the accused, the project ought to have been completed within the stipulated period of 16 months from the date of the joint development agreement, but, till date the accused has not 17 C.C.No.29908/2015 J completed the said project, except putting up pillars and roofing over the site and despite his repeated request and demand to speed up the construction activities, accused gave scant respect and never bothered to taken up the construction and after mutual understanding, he has put up complete ground floor including the car parking over the site on his own expenses by spending a huge sum of Rs.47 Lakhs and in the meantime after his several demands to the accused to adhere to the terms and condition stipulated in the Joint Development Agreement, he approached the accused and after several conciliations held between him and the accused in the presence of the wellwishers and friends of both of the parties, finally it was agreed to enter in to a MOU on 27.07.2015, even though the accused have committed in writing and agreed to complete the project within 3 months and also issued two post dated cheques bearing No.000236 for Rs.23,50,000/= and 000237 for Rs.23,50,000/=, dated 24.09.2015 respectively, both cheques were drawn on the HDFC Bank, M.K.Puttalingaiah Road, 18 C.C.No.29908/2015 J 2nd Stage, Bengaluru for the expenses incurred by him for the construction of the ground and the car parking with an assurance that the said cheques would be duly honored on their presentation on their respective due dates and as per the oral instructions and assurance of the accused he presented the cheque No.000236 for Rs.23,50,000/ through his banker i.e Bank of Maharashtra, Rajarajeshwari Nagar, Bangalore on 24.9.2015 and cheque No.000237 for Rs.23,50,000/ on 24.9.2015 though his banker i.e Karnataka Bank Ltd., BEML Layout Branch, Bangalore for encashment, both cheques were returned dishonoured as "Funds Insufficient"
vide Bank endorsement dated 25.09.2015 and 25.9.2015 respectively, thereafter he got issued two Legal Notice to the accused on 21.10.2015 through RPAD calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice and one of the notice sent by him through RPAD to the residential address of the accused has been duly served and another notice sent through RPAD to his office address has been 19 C.C.No.29908/2015 J returned unserved with a remark "Not claimed on 27.10.2015", thereafter the accused has replied to the notice dt:21.10.2015 on 31.10.2015 on untenable grounds and admitted the transactions held between him and the accused, inspite of it, the accused did not comply the terms of the notice or paid the cheques amount in question.
13. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.14 i.e., Original Cheques dated:24.09.2015 as per Ex.P.1 and P.2 respectively, the signatures on the said cheques identified by P.W.1 are those of the accused as per Ex.P.1(a) and P.2(a) respectively, the Bank Memos as per Ex.P.3 and P.4 respectively, office copy of the Legal Notice as per Ex.P.5, Reply notice as per Ex.P.6, Mutual Agreement as per Ex.P.7, 9 signatures of the accused on the said agreement as per Ex.P.7(a) and 9 signatures of the complainant on the said agreement as per Ex.P.7(b), complaint as per Ex.P.8, signature of the witness as per Ex.P.8(a) certified copies of the GPA dt: 26.9.2012 20 C.C.No.29908/2015 J and Joint Development Agreement as per Ex.P.9 and P.10 respectively, 3 photos as per Ex.P.11 to P.13 respectively, CD as per Ex.P.14.
14. In the present case, it is not in dispute by the accused that, the cheques in question belongs to the account of accused and signatures found at Ex.P.1(a) and P.2(a) are those of the accused. It is also not in dispute that, the cheques in question were presented for encashment within its validity period and the said cheques have been returned as dishonoured for want of sufficient funds as per the returned memos issued by the concerned bank i.e Ex.P.3 and P.4, hence matter on record it is proved by the complainant that, the cheques in question were dishonoured for want of sufficient funds. Hence, the complainant has complied one of the mandatory ingredient of Sec.138 (a) of N.I.Act ie. cheques shall be presented for payment within specified time i.e. from the date of issue or before expiry of its validity.
15. It is relevant here to mention that, as per 21 C.C.No.29908/2015 J Sec.138 (b) of the N.I.Act the complainant i.e., the holder in due course of the cheque has to issue legal notice by demanding payment in writing to the drawer of the cheque i.e. accused within one month from the date of receipt of information of the bounced cheque. In the present case, the complainant has produced Bank memos I.e Ex.P.3 dt: 28.9.2015 and Ex. P.4 dt: 30.09.2015 and the office copy of legal notice i.e. demand notice dt:21.10.2015 which is Ex.P.5. But the complainant has not produced any postal receipt or other documents to show that, the legal notice ie., Ex.P.5 was dispatched or sent within 30 days from the date of receipt of bank memos. It is also contended by the complainant that, he got issued legal notice dt: 21.10.2015 to the addresses of the accused and one of the notice sent by him through RPAD to the residential address of the accused has been duly served and another notice sent through RPAD to the office address has been returned unserved with a remark "Not Claimed" on 27.10.2015, but the complainant has not produced any documents to show that, the legal notice was 22 C.C.No.29908/2015 J dispatched or sent through RPAD and postal acknowledgement or returned RPAD cover with a remark "Not claimed" as contended by him. No doubt, the complainant has produced reply notice dt: 31.10.2015 given by the accused which is at Ex.P.6 but only on that document it cannot be held that, the legal notice ie. Ex.P.5 was dispatched or sent to the accused within 30 days from the date of receipt of legal notice. Hence the legal notice dt:21.10.2015 is taken into consideration it can not be held that, the complainant has sent the said legal notice i.e. demand notice within 30 days from the date of receipt of information in respect of dishonour of the cheques in dispute from the concerned bank. In this regard, it is relevant here to refer the admissions of the complainant in his crossexamination I.e at page No.5 of crossexamination of the complainant/PW.1 he has admitted that, "ನಪ.5 ರಲರರವ ನನನಟನಸನನ ರ ಚಕ ಬನನ ಆದ ನನತರ ಎಷರ ಷ ದನಗಳ ನನತರ ಕನಟಷರರತತನನ ಎನದರ ಹನಳಲರ ದನನಕ ನನಪರರವದಲಲ. ನಪ.5 ರಲರರವ ನನನಟನಸನನ ರ ನನರ ಚಕ ಬನನ ಅದ 31 ದವಸಗಳ ನನತರ ವಲನವರ ಮಡರರತತನನ ಎನದರ ನಜ.23
C.C.No.29908/2015 J ನನರ ಆರನನಪತನಗ ನಪ.5 ರಲರರವ ನನನಟನಸನನ ರ ದಖಲತಯನರ ನ ಹಜರರಪಡಸಲರ ತನದರ ಇರರವದಲಲ. ನಪ.6 ರಪಲ ನನನಟಸ ನನಗ ಯವ ದನನಕದನದರ ತಲರಪರರತತದ ಎನದರ ಮರತರ ಹನನಗರರತತದ".
Hence, the complainant himself admitted that, he has dispatched the legal notice i.e Ex.P.5 after 31 st day from the date of bouncing of the cheques in question and even there is no hindrance for him to produce the documents to show that, Ex.P.5 notice was sent to the accused but the complainant has not produced the said relevant/ material documents and same have been withheld for the unrevealed reasons known to him. Therefore in view of the admissions of the complainant and non production of the material documents makes it clear that, though the complainant has received the bank intimations as per Ex.P.3 and P.4 on 28.09.2015 and 30.09.2015 and the legal notice was prepared on 21.10.2015 as per Ex.P.5 but has not produced the documents to show that, the said legal notice was dispatched or sent within 30 days from the date of receipt of Ex.P.3 and P.4 i.e. bank intimations 24 C.C.No.29908/2015 J regarding bounced cheques, hence the complainant has not complied mandatory provision of Sec. 138(b) of the Negotiable Instruments Act, so as to constitute an offence U/s.138 of Negotiable Instrument Act.
16. In this regard, it is relevant here to refer the decision of Hon'ble Apex court reported in (2014) 2 SCC 424 in the case of Kamalesh Kumar Vs. State of Bihar, wherein the Hon'ble Apex court held that, "Debt financial and Monetary Laws - Negotiable Instruments - Sec.138 Proviso (b) and 142 (b) - compliance with Sec.S.138 proviso (b) - Representation of cheque after dishonour - limitation period for filing complaint for dishonour of cheque upon representation of cheque date on which to be reckoned - legal notice to drawer must be issued within 30 days of that dishonour of cheque, second legal notice issued to drawer of cheque on 17.12.2008 pursuant to dishonour of same cheque second 25 C.C.No.29908/2015 J time on 10.11.2008 i.e. beyond limitation period of 30 days - information as to second dishonour was received from bank on the same day itself (i.e.,10.11.2008)-held although the complainant had right to present the said cheque for encashment a second time after its dishonour, the legal notice pursuant to second notice has to be issued within 30 days of the receipt of information as to second dishonour from bank, which was not done - hence complaint filed on basis of notice dated: 17.12.2008 was not maintainable in view of non compliance with all three conditions laid down in sec. 138 N.I. Act as explained in MSR Leathers, (2013) 1 SCC 177 , (2014) 2 SCC 424b A". Hence in view of principles of law laid down by the Hon'ble Apex court of India, and Sec.138 (b) of Negotiable Instruments Act legal notice has to be issued to the drawer of the cheque within 30 days from the date of information of dishonour of cheque received by the holder of the 26 C.C.No.29908/2015 J cheque from the bank, otherwise i.e. if the legal notice issued after lapse of 30 days from the date of receipt of information from the bank the complaint filed on such notice itself is not maintainable in view of non compliance of the mandatory requirements of Sec.138 of the Negotiable Instruments Act. In the present case also it is an admitted fact by the complainant that, he has not produced any documents to show that, the legal notice caused by him was dispatched or sent through RPAD to the Accused within 30 days from the date of receipt of intimations from the concerned bank and the complainant himself admitted that, he has dispatched the said notice on 31st day from the date of intimation of the bounced cheques in such circumstances the complaint filed by the complainant is not maintainable.
17. It is relevant here to mention that, on careful considering the claim of the complainant and defence of the accused and oral and documentary evidence ie Ex.P.7, Ex.P.9 and P.10 and Ex.D.1 to 27 C.C.No.29908/2015 J D.3 produced by the both parties, it appears that, there is no dispute between the complainant and accused that, the complainant is owner of the property bearing site No. 23, katha No.193, situated at Hallagevaderahalli Village, Kengeri Hobli, Bengaluru South Taluk, measuring EastWest: 80 ft, North South: 40 ft in all 3200 sq,ft. It is also not in dispute that, the accused is a Proprietor/Developer and a registered Joint Development Agreement (herein after referred to JDA for shorter) came to be entered into between the complainant and accused on 26.09.2012 in respect of the above stated property. It is also not in dispute that, the complainant has executed registered General Power of Attorney in favour of the accused/ to carryout the terms of JDA dt:26.09.2012. It is also not in dispute that, as per the JDA 1) the developer i.e., the accused shall at his cost construct the commercial complex in the scheduled property as per the sanctioned plan along with the internal and external service, amenities facilities and including compound walls, lobbies, stair case and passages etc., 2) the 28 C.C.No.29908/2015 J entire cost of construction of the building to be put up in the schedule borne by the developer only and the owner shall not be required to contribute any amount for construction 3) in consideration of developer constructing the building at his cost, the owner agrees to transfer 50% of share in the constructed area along with 50% undivided share in the land 4) it is agreed that, developer should complete the construction along with all amenities as agreed within 16 months from the date of Joint Development Agreement and deliver possession of the constructed area to owner as agreed and further agreed that, if the developer could not complete the construction within 16 months, the developer has to pay the rent as per the market value in respect of owner's share, since time being the essence of contract, therefore the documents i.e Ex.P.9 and P.10 are not the disputed documents.
18. It is the specific claim of the complainant that, as per the JDA the accused has to complete the construction of project within the stipulated 29 C.C.No.29908/2015 J period fo 16 months from the date of JDA but has not completed the said project except putting up pillars and roofing over the site, despite his several requests and demand to speed up the construction activities but the accused never bothered to taken up the construction and after mutual understanding he has put up complete ground floor including car parking over the site on his own expenses by spending huge amount of Rs.47 lakhs. It is also the specific claim of the complainant that, after several demands put forth by him to the accused to adhere to the terms and conditions stipulated in the JDA he approached the accused and several conciliations held between him and the accused in the presence of their wellwishers and friends with a view of resolve their problems, finally they agreed and a Memorandum of Understanding (herein after refereed to as MOU) on 27.7.2015 and even though the accused has committed in writing and agreed to complete the project within 3 months and also issued the two post dated cheques ie. 1) cheque bearing No. 000236 for sum of Rs.23,50,000/ and 2) cheque 30 C.C.No.29908/2015 J bearing No. 000237 for sum of Rs.23,50,000/ both dated:24.09.2015 and the said cheques are issued to him only for the expenses incurred by him towards construction of ground floor and car parking, accordingly he has presented the said cheque and the same were dishonoured with endorsement of "Funds insufficient" dt:25.9.2015 and thereafter he got issued legal notice on 21.05.2015 through RPAD and the said notice was returned as Not claimed on 27.10.2015 and thereafter the accused had given reply to his notice on 31.10.2015 on untenable grounds by admitting the transaction held between him and the accused with an oblique motive to deprive him.
19. On the other hand, the accused has given reply dt: 31.10.2015 i.e. Ex.P.6 and in the said reply the accused has admitted the JDA and GPA executed by the complainant in his favour and also admitted the terms and conditions mentioned in JDA but has specifically taken defence that, the complainant has disturbed and advised him to stop the construction 31 C.C.No.29908/2015 J work during the 16th month inspite of his repeated request has not cooperated for the completion of construction, having no other alternative has filed a suit in O.S.No.1209/2015 on the file of CCH18 court for relief of permanent injunction against the complainant and in the said suit the complainant has appeared and prosecuted the suit thereafter the suit was ended in compromise by entering of Memorandum of Understanding dt:27.07.2015. The accused in his reply notice has specifically admitted that, as per the MOU it is agreed between them and as per the oral agreement he has handed over two cheques bearing Nos.000236 and 000237 to the complainant for security purpose and also agreed that, he shall complete the construction work within 3 months from the date of MOU. It is also specifically contended by the accused that, at the time of execution of MOU he has executed the sale agreement in respect of apartment known as "Everjoy Balaji Enclave", Flat No.103 in 1st floor measuring 1250 sq.ft., and Flat No.308 in 3rd floor measuring 1100 sq.ft stating that if the above said cheques were 32 C.C.No.29908/2015 J not encashed by him after completion of construction work complainant is at liberty to proceed with the Agreement of Sale dated: 20.7.2015 and the accused by suppressing the said facts has misused the cheques which were issued for security purpose and also knock off the above said flats for wrongful and illegal gain and violated the MOU dated; 27.07.2015 and making all kinds of harassment, disturbance to him not to complete the construction work and not to proceed with the construction work for completion of project. It is also specifically contended by the accused that, if at all the complainant is interested to have the above said two flats in his name he is ready and willing to execute register sale deed in his favour by receiving the balance amount of Rs.l43 Lakhs from him and complainant is liberty to return the said cheques in question to him.
20. On careful considering the rival contentions of the complainant and accused makes it clear that, according to the complainant the accused has failed to complete the construction 33 C.C.No.29908/2015 J work of the project within the stipulated period of 16 months as per the JDA inspite of his repeated requests and demand and after mutual understanding he has constructions complete ground floor including the car parking over the site on his own expenses by spending huge sum of Rs.47 lakhs and in the mean time the accused approached him and after several conciliations held between them in the presence of wellwishers and friends, finally they have entered into MOU dt: 27.07.2015 I..e Ex.P.7 and as per the MOU the accused has issued the cheques in question i.e Ex.P.1 and P.2 for sum of Rs.23,50,000/ each I.e total for sum of Rs.47 Lakhs to him towards the expenses incurred by him for construction of ground floor and car parking. On the other hand, though the accused has admitted the execution of MOU i.e Ex.P.7 and also admitted the issuance of cheques i.e Ex.P.1 and Ex.P.2 for security purpose and also contended that, at the time of execution of MOU he has also executed Sale Agreement in respect of two flats bearing No.103 and 308 situated in Everjoy Balaji Enclave Apartment 34 C.C.No.29908/2015 J stating that, if the cheques in question were not encashed by him after completion of the construction work the complainant is at liberty to proceed with the agreement of sale dt: 20.07.2015, hence, the entire case of the complainant rests on the MOU dt: 27.07.2015 i.e Ex.P.7, JDA ie. Ex.P.9, GPA i.e Ex.P.10.
21. It is important to note here that, in order to establish claim of the complainant the complainant mainly has relied upon the MOU, dt:
27.07.2015 ie Ex.P.7, on careful perusal of the Ex.P.7 it appears that, the complainant and accused have entered into an MOU on 27.07.2015 in respect of the construction of project as per the terms and conditions stipulated in JDA ie., Ex.P.9 by contending that, since there is a delay in construction of project work by the accused as per the time stipulated in JDA ie. 16 months from the date of JDA. It is also seen in MOU that, the complainant has incurred expenses of Rs.47 Lakhs and has completed the construction work in the 35 C.C.No.29908/2015 J First floor since the accused has failed to complete the construction and hand over the possession within 16 months as per the conditions mentioned in JDA. It is also referred that, due to the differences arose between them the accused has filed a suit in O.S.No.1209/2015 for relief of permanent injunction against the complainant during the pendency of suit they compromised by entering into MOU. It is important to refer the relevant conditions of the MOU since the dispute involved in this case arising out of the said conditions of the MOU which reads as under:
3. ಈಗಗಲನ ಒನದನನ ಪಟರ ದರರರ ರನ. 47,00,000/ ನಲವತತನಳರ ಲಕ ರನಪಯ ಮತ ತ ಗಳನರ ನ ದ ಖರರರ ಮಡದರ ಸದರ ಹಣವನರ ನ ಎರಡನನ ಪಟರದರರರ ಒನದನ ಪಟರ ದರರಗ ದ .
ದನನಕಕ 24.09.2015 ರಒಳಗ ಕನಡತಕಕದರ ಸದರ ಹಣದ ತನರರವಳಗಗ ಎರಡನನ ಪಟರದರರರ ಒನದನನ ಪಟರದರರಗ ಮರನದನ ದನನಕ ನಮನದರ ಮಡದ ಎರಡರ ಚಕರ ಕ ಗಳನರ ನ ಅದರ ರನ. 23,50,000/ (ಇಪಪತರತ ಮನರರ ಲಕದ ಐವತರತ ಸವರ ರನಪಯ ಮತ )ತ ಗಳಗ ಚಕ ನನ. 000236, ದನನಕಕ 24.09.2015 ಮತರತ ರನ.23,50,000/ (ಇಪಪತರತ 36 C.C.No.29908/2015 J ಮನರರ ಲಕದ ಐವತರತ ಸವರ ರನಪಯ ಮತ )ತ ಗಳಗ ಚಕನನ. 000237, ದನನಕಕ 24.09.2015 ರ ಹಚಡ ಎಫಸ ಬಬನಕ ನ ಎರಡರ ಚಕರ ಕ ಗಳನರ ನ ಒನದನನ ಪಟರದರರರ ವಶಕಕ ಕನಟಷರರತತರ.
4. ಎರಡನನ ಪಟರದರರರ ಈಗಗಲನ ನರರಸರತತರರವ ಎವರ ಜಯಬಲಜ ಎನಕಲ ವ ಎನಬ ಹಸರನ ಅಡಯಲ ನರರ ಸರತತರರವ 3 ಬಡರನನ ವಳಳ ಪಲಟನ ನನ. 103, 1 ನನ ಮಹಡರ ವಸತನಣರ 1250 ರದರ ಅಡಗಳರ ಮತರತ 180 ಅಡಗಳ ಅವಭ ಜತ ಹಕಕನ ಸಸತರತ ಮತರತ 2 ಬಡ ರನನ ವಳಳ ಪಲಟನ ನನ.308, 3 ನನ ಮಹಡರ ವಸತನಣರ 1100 ರದರ ಅಡಗಳರ ಮತರತ 160 ಅಡಗಳ ಅವಭ ಜತ ಹಕಕನ ಸಸತರತ ಈ ಮನ ಲಕನಡ ಎರಡನ ಸಸತರತಗಳರ ಲ ಕರ, ಉತತರ ಹಳಳ ಹನನಬಳ , ಅರಹಳಳ ಬನಗಳನರರ ದಕಣ ತಲನ ಗಗಮದ ಸಸಟ ನನ. 25, 26 ಎ, 27, 29 ಮತರತ 30, ಖತ ನನ. 29 ಮತರತ 30 ರಲ ನರರಸರರವ ಈ ಎರಡರ ಪಲಟಗಳ ಮನಲಕನಡ ಹಣದ ಭದಗತಗಗ ಈಗಗಲನ ದನನಕಕ 20.07.2015 ರನದರ ಒನದನನ ಪಟರದರರ ಹಸರಗ ಎರಡರ ನ ನನನನದಯಸಕನಟಷರರತತರ. ಒನದರ ಕ ತಯದ ಕರರರ ಪತ ತಗಳನರ ವನಳ ಮನಲಕನಡ ಹಣವನರ ನ ಕನಡಲರ ತಪಪದಲ ಒನದನನ ಪಟರಯವರ ಹಸರಗ ಶರದದ ಕ ತಯ ಪತ ತವನರ ನ ಬರದರ ಕನಡಲರ ಎರಡನನ ಪಟದರರರರ ಒಪಪರರತತರ.
37C.C.No.29908/2015 J On careful reading of the condition No.3 of the MOU, it appears that, the first party i.e the complainant has incurred a sum of Rs.47 Lakhs and the said amount has to be paid by the accused on or before 24.09.2015 and the accused has handed over two cheques bearing Nos. 000236 for sum of Rs.23,50,000/=, and another cheque bearing No. 000237 for sum of Rs.23,50,000/ by mentioning the date as 24.09.2015, both cheques are drawn on HDFC Bank, in the hands of complainant. It is also important to refer the condition no.4 of the MOU wherein it is specifically referred that, the second party i.e. the accused has executed a sale agreement in respect of the flat No.103 measuring 1250 sq.ft in first floor and flat No. 308 measuring 1100 sq.ft in 3rd floor situated in "Everjoy Balaji Enclaves" for security towards the amount mentioned in the above stated cheques and also referred that, in case if the above mentioned amount failed to pay by the second party and the second party ie. accused has agreed to execute the registered sale deed in favour of the first party i.e the complainant in respect of the 38 C.C.No.29908/2015 J flats mentioned in the Agreement of sale. Hence, on careful reading of the above stated conditions No.3 and 4 together it appears that, the complainant and accused have agreed that, the accused is entitled to pay a sum of Rs.47 Lakhs to the complainant and in turn he agreed to pay the said cheque on or before 24.09.2015 in this regard he has handed over two cheques i.e Ex.P.1 and P.2 infavour of the complainant. It is also agreed by the complainant and accused that, the accused has executed an agreement sale in respect of the flat No.103 measuring 1250 sq.ft in first floor and flat No. 308 measuring 1100 sq.ft in 3rd floor situated in "Everjoy Balaji Enclaves" for the security purpose of the said amount and in case if the accused fails to pay the cheques amount or amount agreed by him then he agreed for executing the registered sale deed in favour of the complainant in respect of the above stated flats. It is important to mention here that, the complainant has agreed for the above said conditions as the complainant neither in his complaint or in his evidence or in the legal notice issued to the accused 39 C.C.No.29908/2015 J nowhere disputed about the terms and conditions of the MOU ie. Ex.P.7. The document i.e. Ex.P.7 is produced by the complainant himself, therefore the complainant has to admit entire terms and conditions of the MOU but he cannot be permitted to admit the conditions which were beneficial to him and deny the conditions which were not beneficial to him in the same document, therefore the recitals of the Ex.P.7 has to be read in its entirety not by picking up a particular condition or words in the Ex.P.7.
22. It is also important to mention here that, the complainant/PW.1 during the course of his crossexamination has denied the suggestion that, as per condition No.4 of the Ex.P.7 apart from the cheques in question there are two flats have been given as security and agreement of sale was executed in his name but admitted that, he has presented the two cheques i.e., Ex.P.1 and P.2 for encashment within two months from the date of Ex.P.7, hence the above denial and admission of the 40 C.C.No.29908/2015 J complainant goes to show that, though the complainant is aware of the conditions enumerated in Ex.P.7 but intentionally in order to avoid admitting the condition No.4 denied the suggestion made to him. Apart from that, the complainant has not produced the sale agreement executed in his favour by the accused in repsect of the two flats towards security of the amount covered under the cheques in question. When the complainant is heavily relying upon the Ex.P.7 it is for him to produce the sale agreement executed in his favour and if the sale agreement is produced before the court the real truth would have come before the court, in such circumstances an adverse inference can be drawn against the complainant that, he has withheld the material document for his unrevealed reasons. Even it is not the case of the complainant that, the accused is not ready to execute the register sale deed in his favour as per the condition No.4 of the MOU therefore the complainant has suppressed the material fact i.e. condition No.4 of the MOU in his complaint and also evidence, in such 41 C.C.No.29908/2015 J circumstances an adverse inference can be drawn against the complainant that, he has filed this complaint by suppressing the material fact and filed only by referring the conditions which were beneficial to him in MOU but has failed to mention all the conditions referred in the same document itself, in such circumstances it can be held that, as per condition No.4 of the MOU ie Ex.P.7 the complainant has admitted that, if the accused has failed to pay the amount of Rs.47 Lakhs covered under the cheques in question, the complainant is at liberty to proceed with the sale agreement i.e to get the registered sale deed in respect of the flats No.103 and 308 referred in the agreement of sale dated:
20.7.2015 but not proceeding against the accused in respect of the cheques in question either by filing criminal case or civil suit. It is also important to mention here that, even though the accused in his reply notice i.e Ex.C.6 has admitted that he is liable to pay Rs.47 lakhs to the complainant but he has also agreed that he is ready and willing to execute the registered sale deed in favour of the complainant 42 C.C.No.29908/2015 J as per the condition No.4 of the MOU, but the complainant inspite of receipt of the said notice has not replied or issued any rejoinder to the Ex.C.6 ie., reply notice, if really the complainant has not agreed for getting registration of the sale deed in respect of the flats mentioned in the agreement of sale in case if the accused failed to repayment of Rs.47 Lakhs i.e expenses incurred by him, definitely he would have issued rejoinder to the Ex.C.6 issued by the accused, therefore in view of non denial of the complainant may leads to draw an adverse inference that, he has agreed that in case if the accused failed to pay Rs.47 lakhs ie amount covered under the cheques in question he is ready and willing to get the registered sale deed in his favour as replied by the accused in his reply notice, on this count also it cannot be held that, there exists a legally recoverable debt or liability on the part of the accused to pay the amount covered under the cheques in question.
23. It is relevant here to refer that, the 43 C.C.No.29908/2015 J complainant in his complaint and evidence specifically claimed that, the cheques in question ie. Ex.P.1 and P.2 issued by the accused only towards expenses incurred by him for construction of ground floor and car parking with an assurance that, cheques issued by him would be honoured without fail on their presentation to the bank, accordingly he has presented the said cheques through his bank but they were dishonoured for want of sufficient funds and thereafter he has intimated the same to the accused but he did not responded and gave evasive and unconvincing reply. On the other hand, the accused had given reply as per Ex.C.6 in the said reply he has admitted the cheques in question belongs to his account and signatures found on the cheques are those of his signatures and also admitted handing over of the said cheques to the complainant but he has specifically taken defence that, as per the MOU i.e Ex.P.7 the said cheques were handed over only for security to the amount mentioned in the cheques but not issued towards discharge of the liability ie., expenses incurred by the 44 C.C.No.29908/2015 J complainant and also contended that, in case if he fails to pay the amount mentioned in the cheques ie. Rs.47 Lakhs in total, he has agreed to execute the registered sale deed in respect of the flats referred under the agreement of sale dt: 20.7.2015 and he is ready and willing to execute the sale deed in favour of the complainant as per the condition enumerated in MOU i.e Ex.P.7. Therefore even though the accused has admitted the cheques in question belongs to him and signatures found on the cheques are those of the accused but the complainant has to prove the said cheques were issued towards discharge of the liability or debt. It is also important here to mention that, the complainant has agreed that in case if the accused fail to pay the amount covered under the cheques the accused agreed for execution of the sale deed in respect of the flats No. 103 and 308 referred in the agreement of sale towards the expenditure incurred by the complainant. This fact is also clearly referred at condition No.4 of MOU I.e Ex.P.7, therefore on combined reading of conditions No.3 and 4 it appears that, if the accused has fail to pay the 45 C.C.No.29908/2015 J amount i.e., covered under the cheques in question , he has agreed to execute the register sale deed in favour of the complainant therefore it can be held that, the cheques in question were not issued towards payment of the expenditure incurred by the complainant as claimed by him, on the contrary if the cheques were not encashed the complainant is at liberty to get the registered sale deed from the complainant, hence there is an alternative remedy is provided to the complainant for recovery of the amount or expenditure incurred by him by way of getting registration of the sale deed in respect of the flats referred in the agreement of sale. It is also important here to mention that, the accused in his reply has also admitted and agreed that he is ready and willing to execute the register sale deed in favour of the complainant as per the terms of the MOU but inspite of it, the complainant did not proceeded for getting the registered sale deed as per the condition No.4 of the MOU i.e Ex.P.7 has filed this complaint against the accuse before this court, in such circumstances when an alternative remedy is 46 C.C.No.29908/2015 J available to the complainant and though the accused is ready to comply the terms mentioned at condition No.4 of MOU i.e Ex.P.7, the complaint filed by the complainant itself is not maintainable and it cannot be held that, the cheques in question were issued towards discharge of the liability or the expenditure incurred by the complainant as claimed in this complaint.
24. In addition to the above, the complainant in his crossexamination has clearly admitted that, he had collected two post dated cheques as security as per Ex.P.7 but has denied the suggestion made to him that, as per condition No.4 of Ex.P.7 the accused has also executed an agreement of sale in his name in respect of two flats towards security, hence it goes to show that, though the complainant has admitted that, the cheques in question were issued only towards security of the expenditure incurred by him but intentionally has denied the condition No.4 of Ex.P.7 and has suppressed the said condition in his complaint, evidence and also in the legal notice, 47 C.C.No.29908/2015 J therefore though an alternative remedy is available to the complainant for recovery of the expenditure incurred by him as per condition No.4 of MOU i.e Ex.P.7 and cheques in question were issued only towards security and inspite of it, he has filed this complaint even though accused is ready to comply the terms of MOU, in such circumstances as per the condition No.4 of MOU i.e Ex.P.7 the complainant ought to have proceeded for getting registration of the sale deeds as the accused is ready and willing to execute the register sale deed in his favour, therefore for the above said reasons it cannot be held that, the Ex.P.1 and P.2 were issued towards the amount ie expenditure incurred by the complainant as claimed in his complaint and evidence. It is also important here to refer that, the complainant is claiming as per condition No.3 of the MOU i.e Ex.P.7 the accused has issued the Ex.P.1 and P.2 cheques towards expenditure incurred by him for construction of ground floor and car parking area but at the same time he has suppressed the condition mentioned at clause 4 of Ex.P.7 MOU, in such circumstances when 48 C.C.No.29908/2015 J the complainant is relying on the Ex.P.7 he ought to have admit the entire contents of the document and he cannot be permitted to take advantage of the condition which is beneficial to him at the same time the entire recitals of Ex.P.7 has to be looked into to decide the real controversy involved in this case. In this regard, it is relevant here to refer the decision of Hon'ble Supreme Court of India reported in (2020) 6 SCC 387 in the case of Bhagwat Sharan (Dead through Lrs ) Vs. Purushottam and Others. Wherein the Hon'ble Apex Court held that " Person who once takes the benefits of portion of will cannot challenge the remaining portion of the will - it is trite law that, a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of doctrine of election. In respect of wills, this doctrine has been held to mean that, a person who takes benefit of a portion of the will cannot challenge the remaining portion of 49 C.C.No.29908/2015 J the will" It is true that, the above principles of law held by the Hon'ble Apex Court of India in respect of the will involved in the civil suit but the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand as in this case also the complainant has filed this complaint on the basis of cheques in question i.e Ex.P.1 and P.2 issued by the accused as per the conditions involved in the MOU i.e Ex.P.7, but the complainant has only restricted his claim as per condition No.3 of the MOU but has suppressed the alternative remedy provided to him for recovery of the amount covered under the cheques in question as per condition No.4 of the MOU, therefore if the conditions No.3 and 4 are read together makes it clear that, though the alternative remedy is available to the complainant for recovery of the expenditure occurred by him as claimed in this complaint as per condition No.4 of the MOU instead of invoking the said condition against the accused he has filed this complaint only on the basis of condition No.3 of MOU, in such circumstances in view of the principles of law laid 50 C.C.No.29908/2015 J down by the Hon'ble Apex Court of India in the above referred decision it can be held that when the complainant accept the benefit of a contract or conveyance or an order, it is estopped by him denying the validity or binding effect on him of such contract or conveyance or order ie., the complainant is estopped by denying the condition No.4 of MOU ie. Ex.P.7. Therefore for the above said reasons the complainant has miserably failed to prove that, there exists a liability against the accused and the accused in order to discharge the said liability has issued the cheques in question.
25. The accused during the course of cross examination has confronted the some other documents i.e. the Civil Suit in O.S.No.5189/2016 is filed by the complainant against him for declaration that, the JDA and GPA ie. Ex.P.9 and P.10 executed by him are null and void and also permanent injunction against the accused from acting on the said documents and making use of the same for any other purpose and for other reliefs and the certified 51 C.C.No.29908/2015 J copy of the plaint the said suit got marked as Ex.D.1 by confronting the same to the complainant . The accused has also got marked the certified copy of the legal notice issued by the complainant to him dt:
29.12.2014 prior to filing of the suit as per Ex.D.2 by confronting the same to the complainant and lease agreement executed by the complainant in favour of the Karnataka Bank Ltd., as per Ex.D.3 by confronting the same to the complainant during the course of crossexamination. The complainant in his crossexamination has also admitted that, he has filed the suit as per Ex.D.1 against the accused and also admitted the issuance of legal notice as per Ex.D.2 and also admitted the execution of lease deed in favour of the Karnataka Bank Ltd., as per Ex.D.3 but the issue involved in the said original suit is not pertains to the dispute involved in the MOU ie. Ex.P.7 in this case and the cheques involved in the present case, therefore though the complainant has admitted the filing of suit for cancellation of JDA and GPA the said issue will be decided by the Hon'ble Civil Court and no further 52 C.C.No.29908/2015 J discussions are required in respect of Ex.D.1 to D.3 in the present complaint. It is true that, the complainant has claimed Rs.37 Lakhs against the accused towards amount incurred for completion of building and towards rental as agreed for delayed construction but in the reply notice ie. Ex.P.6 issued by the accused in this case has admitted that, he is entitled to pay Rs.47 Lakhs to the complainant , in such circumstances there is no need to discuss about the claim made by the complainant or demand made by the complainant in Ex.D.3 notice.
In addition to that, in view of the admitted facts with regard to conditions of the MOU i.e Ex.P.7 the dispute between the complainant and the accused in this case only with respect to the amount or expenditure incurred by the complainant for construction of ground floor and car parking area , in such circumstances the question of considering the Ex.D.1 to D.3 in this case does not arise at all.
26. The learned counsel for the complainant argued that, the accused has issued Ex.P.1 and P2 53 C.C.No.29908/2015 J cheques towards the expenditure incurred by the complainant for construction of ground floor and car parking area to the extent of Rs.47 Lakhs and the accused has also admitted his liability to pay the said amount and issued the cheques in question as per the MOU entered between the complainant and accused ie. Ex.P.7. The accused has also not disputed the JDA I.e Ex.P.9 and GPA ie. Ex.P.10 executed by the complainant and the complainant has proved that, the accused has not completed the project work within 16 months as per the terms of JDA and due to delay the complainant after mutual understanding has put up the construction of ground floor and car parking over the site and incurred an expenditure of Rs.47 Lakhs , this fact is admitted by the accused in Ex.P.7, therefore the accused has issued the cheques in question towards expenditure incurred by the complainant and accused has also admitted the cheques in question belongs to his account and signatures found on the cheque are those of his signatures and also admitted that, the said cheques were dishonoured for want of 54 C.C.No.29908/2015 J sufficient funds, in such circumstances the presumption can be drawn u/s. 118 and 139 of N.I.Act and accused has committed an offence punishable U/s.138 of N.I.Act and prayed to convict the accused and to award compensation to the complainant since the complainant has spent a huge sum of Rs.47 Lakhs for construction work and also failed to make use of his own site due to delay of the accused.
27. On the other hand, the learned counsel for the accused argued that, as per the terms of the MOU I.e Ex.P.7 it is agreed by the complainant and accused that,the cheques in question were handed over to the complainant for security of the amount incurred by him and not for discharge of any liability and also agreed that, in case the accused failed to pay the amount covered under the cheque as per para No.4 of MOU ie. Ex.P.7, the accused agreed for execution of the sale deed since the accused has executed an agreement of sale in respect of the two flats bearing No.103 and 308 towards security of the 55 C.C.No.29908/2015 J amount covered under the cheques and this fact is also admitted by the complainant in his cross examination, therefore as per the para No.4 of the Ex.P.7 remedy was not for encashment of the cheque but the remedy was provided to the complainant to get the registered sale deed in his favour as per the agreement of sale, therefore the complainant has failed to prove that, the cheques in question were issued for discharge of the liability as claimed by the complainant, hence the learned counsel prayed for acquittal of the accused.
28. On careful considering the rival arguments canvassed by the both learned counsels and on overall considering the oral and documentary evidence adduced by the complainant and admitted facts by the complainant and accused, as it is already held in the above that, the complainant has failed to prove that, the accused has issued the cheques in question i.e Ex.P.1 and P.2 towards discharge of the liability and also failed to prove that, there is a liability is in existence to pay the amount 56 C.C.No.29908/2015 J covered under the cheques in question and it is also held that, as per the condition No.4 of the Ex.P.7 MOU the complainant and accused are agreed that, in case the accused has failed to pay the amount covered under the cheques on or before 24.09.2015 and the accused has agreed to execute the registered sale deed in the name of complainant in respect of the two flats bearing No. 103 and 308 situated at Everyjoy Balaji Enclave as per the Agreement of Sale dated: 20.07.2015, and though the accused is ready and willing to execute the registered sale deed in lieu of the expenditure incurred by the complainant for construction of the ground floor and car parking as claimed by him, but the complainant instead of proceeding as per the condition No.4 of the MOU i.e Ex.P.7 has proceeded to file this complaint against the accused though there is no liability is in existence, in such circumstances, it can be held that, the accused has successfully rebutted the presumptions enumerated U/s.118 and 139 of N.I.Act by eliciting the relevant facts from the materials produced by the complainant as discussed 57 C.C.No.29908/2015 J in the above while appreciation of the oral and documentary evidence of the complainant. Therefore in view of the above said reasons the complainant has failed to prove that, the cheques in question were issued by the accused towards the discharge of the debt or liability and the amount covered under the cheque should be recovered by the accused as per the condition No.4 of the MOU i.e. Ex.P.7 and when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I.Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
29. Point No.2: In the light of discussions 58 C.C.No.29908/2015 J made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following : ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond and surety bond executed by the Accused stands cancelled.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 20th day of March 2021).
59C.C.No.29908/2015 J (SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. P.Lakshmana
2. List of documents exhibited on behalf of the Complainant: Ex.P.1 & P.2 : Original Cheques;
Ex.P.1(a) & : Signatures of the Accused;
P.2(a)
Ex.P.3 & P.4 : Bank Memos;
Ex.P.5 : Office copy of the Legal Notice;
Ex.P.6 : Reply Notice;
Ex.P.7 : Mutual Agreement dtd: 27.07.2015
Ex.P.7(a) : 9 Signatures of the accused;
Ex.P.7(b) : 9 Signatures of the complainant;
Ex.P.8 : complaint
Ex.P.8(a) : Signature of the complainant
Ex.P.9 : Certified copy of GPA dt: 26.9.2012
Ex.P.10 : Certified copy of Joint Development
Agreement
Ex.P.11 to 13 : 3 photos;
60
C.C.No.29908/2015 J
Ex.P.14 : C.D.
3. List of witness/s examined on behalf of the Accused: Nil
4. List of documents exhibited on behalf of the Accused: Ex.D.1 : certified copy of plaint in O.S.No.5189/16;
(Marked through PW.1)
Ex.D.2 : certified copy of Notice;
(Marked through PW.1)
Ex.D.3 : certified copy of Lease Agreement
(Marked through PW.1)
(SRI.S.B.HANDRAL),
XVI ACMM, Bengaluru City.
61
C.C.No.29908/2015 J
20.3.2021
Case called out, Both complainant and counsel for complainant absent and accused, counsel for the accused absent, Judgment pronounced in the open court vide separate order.
ORDER The complaint U/s.200 of Cr.P.C.
filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond and surety bond executed by the Accused stands cancelled.
XVI ACMM, B'luru.