Madras High Court
R.Palanivelu vs M.P.Natarajan
Author: C.T. Selvam
Bench: C.T. Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 22.09.2014 DELIVERED ON : 17.12.2014 CORAM: THE HONOURABLE MR. JUSTICE C.T. SELVAM Crl.R.C.No.320 of 2014 and M.P.Nos.5 and 6 of 2014 R.Palanivelu .. Petitioner vs. M.P.Natarajan .. Respondent Criminal Revision filed under section 397 r/w 401 Cr.P.C. to call for records and set aside the judgment passed in C.A.No.40 of 2011 on the file of learned VI Additional Judge, City Civil Court, Chennai, dated 12.03.2014 confirming the judgment of learned X Metropolitan Magistrate, Egmore, Chennai, passed in C.C.No.208 of 2008 dated 02.02.2011. For Petitioner : Mr.N.R.Elango, senior counsel for Mr.S.Thirunavukkarasu For Respondent : Mr.G.Arivarasan ***** O R D E R
This revision arises against two concurrent judgments of Courts below convicting the petitioner of offence u/s.138 of the Negotiable Instruments Act, sentencing him to undergo 1 year S.I. and requiring him to pay compensation in a sum of Rs.60,00,000/- to the complainant within three months.
2. Prosecution case:
Respondent entered into a sale agreement with the petitioner/accused on 22.05.2006 in respect of land measuring 10 acres 60 cents in Survey Nos.101/2A and 103 2/A at Piriyankuppam Village. In keeping therewith, respondent has paid the entire amount and petitioner/accused has executed a sale deed in his favour of an extent of 10 acres. Upon respondent's request regards the remaining 60 cents, petitioner informed respondent that he had sold the same to some other persons and undertook to return a sum of Rs.24,00,000/- paid by respondent along with an additional sum of Rs.36,00,000/- as compensation. In keeping therewith, petitioner/accused issued cheque No.570495 drawn on ICICI Bank, Anna Nagar West Branch, Chennai 600 101 dated 18.10.2007 in a sum of Rs.60 lakhs. When presented for payment, the same was returned unpaid with the endorsement 'insufficient funds". Respondent/ complainant caused statutory notice, to which the petitioner caused a reply denying his liability. In keeping with the provisions of Section 138 of the Negotiable Instruments Act, the respondent/ complainant preferred a complaint. The same was taken on file in C.C.No.208 of 2008 on the file of learned X Metropolitan Magistrate, Egmore, Chennai.
3. Before the trial Court, complainant examined himself and marked fifteen exhibits. Accused examined himself and marked ten exhibits. On appreciation of materials before it, the trial Court, under judgment dated 02.02.2011, rendered a finding of conviction, sentenced petitioner to undergo 1 year S.I. and directed him to pay compensation in a sum of Rs.60,00,000/- to the complainant. There against, the petitioner filed C.A.No.40 of 2011 on the file of learned VI Additional Sessions Judge, Chennai. Under judgment dated 12.03.2014, the appellate Court dismissed the appeal. Hence, this revision.
4. It is common case that this petitioner, as owner of an extent of 10.6 acres in Survey Nos.101/2A and 103 2/A at Piriyankuppam Village, had entered into a sale agreement with the respondent/complainant on 22.05.2006. The case of petitioner is that the agreement covered only an extent of 10 acres and the question regards the balance 60 cents was to be decided later. Rs.15 lakhs per acre was agreed upon and thus, the total consideration of Rs.1,50,00,000/-, 131 plots were formed of 10 acres. As per the agreement, upon receipt of payment for plots, petitioner was to convey the same to respondent or his nominees or execute Powers of Attorney. It is petitioner's further case that the time of six months envisaged in the agreement expired on 22.11.2006, that upon the respondent's failure to abide with the terms, the period was extended for six months upto 22.05.2007. Even on such date, respondent had failed to complete his part of the bargain. The payment of entire sum of Rs.1.50 crores was completed by the respondent only on 22.06.2007. Since on such date 24 plots were unconveyed, the petitioner demanded an enhanced sum of Rs.1 lakh for each of the plots on account of the undue delay and steep escalation of price of land. The respondent had paid the said amount of Rs.24 lakhs as follows:
Date Amount 23.08.2007 Rs.
13,00,000/-
10.09.2007 Rs.
5,00,000/-
09.10.2007 Rs.
3,50,000/-
13.10.2007 Rs.
2,50,000/-
Total Rs.
24,00,000/-
5. Case of the respondent/complainant is that the agreement dated 22.05.2006 covered the entire extent of 10.6 acres, 10 acres had been sold to different parties and the entire amount therefor had been paid to the petitioner/accused. It is his case that for the remaining 60 cents, Plot No.125 and Shop Plot No.1, he had paid Rs.24 lakhs. However, since the petitioner/accused had sold the remaining extent of 60 cents to some other persons, the petitioner/accused, being unable to complete his part of the bargain, had informed the respondent/complainant that he would return the sum of Rs.24 lakhs along with an additional amount of Rs.36 lakhs as compensation and thus, the cheque of Rs.60 lakhs came to be issued in his favour.
6. Heard learned senior counsel for petitioner and learned counsel for respondent. Perused the records.
7. Mr.N.R.Elango, learned senior counsel for petitioner, submitted that respondent's case was rife with discrepancies. Referring to the statutory notice dated 01.11.2007, it is submitted that the same informs that as per the agreement, respondent had purchased 10 acres and that for the remaining 60 cents, Plot No.125 and Shop Plot No.1, he had paid Rs.24 lakhs, but, since petitioner had, in the mean while, sold the said properties to some others without respondent's knowledge, petitioner had agreed to return the sum of Rs.24 lakhs as also Rs.36 lakhs by way of compensation. Respondent, in cross-examination, had contended that the sum of Rs.24 lakhs was the total consideration for 60 cents. He had admitted to not informing the dates and manner of payment of such sum either in the complaint, the sworn statement or in his proof affidavit. He had deposed that total consideration for the extent of 10 acres stood completed upon payment of Rs.10,69,650/- under agreement dated 26.06.2007. He had admitted to strife between him and the petitioner owing to delay in completing the transaction. Admitting to a sum of Rs.9,00,000/- being due from him, respondent had contended that owing to escalation of land prices the petitioner has sought Rs.30 lakhs and using the services of an intermediary, he had agreed to pay Rs.15 lakhs more. In response to question on whether the practice of paying higher sums then agreed upon in the face of escalation of land prices was vogue in land transactions, he had stated that the same depended on the parties to the transaction. He had admitted that of the 129 approved plots, 24 had not been sold as on 26.06.2007. As against informing a sum of Rs.36 lakhs to be payable as compensation in the complaint, in cross, respondent had informed that such sum also encompassed the price of Plot No.125 and Shop Plot No.1 sold by petitioner to his wife under Exs.P7 and P8, on 15.12.2006.
8. Learned senior counsel submitted that the defence case of the sum of Rs.24 lakhs having been paid towards additional compensation of Rs.1 lakh for each plot stood admitted. According to petitioner, the said sum of Rs.24 lakhs was paid on 23.08.2007, 10.09.2007, 09.10.2007 and 13.10.2007 and conveyance of plots were effected in the following manner:
Date Amount Conveyance 23.08.2007 Rs.
13,00,000/-
13 plots 10.09.2007 Rs.
5,00,000/-
5 plots
09.10.2007 Rs.
3,50,000/-
13.10.2007 Rs.
2,50,000/-
6 plots Total Rs.
24,00,000/-
24 plots Respondent admitted to having effected payment of Rs.13 lakhs on 23.08.2007 and that Ex.D1, Power of Attorney for 12 plots was executed by petitioner on such date. Respondent has admitted to effecting payment of Rs.5 lakhs on 10.09.2007 and that on such date, a Power of Attorney had been executed by petitioner in respect of 5 plots under Ex.D2. Respondent has admitted to effecting payments of Rs.3.5 lakhs and Rs.2.5 lakhs on 09.10.2007 and 13.10.2007 respectively and that a Power of Attorney in respect of 6 plots was executed by petitioner on 09.10.2007 under Ex.D3. While accepting that Exs.D1 to D3, Powers of Attorney covered 23 plots, respondent had claimed forgetfulness regarding sale of one plot to one Sampath on 23.08.2007. It was again, in cross, admitted that there was no agreement for sale regards the extent of 60 cents. Learned senior counsel submitted that after the completion of cross-examination of respondent, an additional proof affidavit had been filed by him. It was only after admission to misgivings between the parties owing to respondent failing to effect full payment within the agreement period, after the admission of manner of payment of Rs.24 lakhs, execution of Powers of Attorney pursuant thereto and the practice of additional payment upon cost escalation in the course of cross-examination on 11.05.2009 that the respondent had filed an additional proof affidavit on 09.12.2009 towards producing documents regards sale of properties by petitioner to his wife.
9. Learned senior counsel submitted that the sale to the wife of petitioner was well within the knowledge of the respondent/complainant even as on the date thereof since the respondent's agent one Srinivasan was a witness thereto. That the said Srinivasan was the agent of the respondent easily was discernible from the fact that he was a witness to several of the sale deeds executed pursuant to Powers of Attorney issued by the petitioner. For instance, he was a witness to Exs.D1 to D3, Ex.D5, Exs.P7 and P8.
10. Learned senior counsel pointed out that paragraph Nos.11 and 12 of the judgment of the trial Court informed a finding that the respondent/complainant had not produced any oral or documentary evidence towards justifying the claim of compensation in a sum of Rs.36 lakhs and despite such observations, the trial Court held the petitioner guilty of offence u/s.138 of the Negotiable Instruments Act. The finding of the appellate Court to the effect that the respondent has proved the payment of amount, that the petitioner/accused, in violation of the agreement, conveyed the property to his wife and brother's son and that the accused had issued the subject cheque to compensate the respondent, was erroneous in the face of the finding of the trial Court that there was no consideration justifying compensation in a sum of Rs.36 lakhs. Respondent has failed to prove the complaint allegations as found even by the trial Court. All that the defence was required to do was to establish its case by preponderance of probabilities. In the instant case, the defence had established more than a prima facie case which made inapplicable section 139 of the Negotiable Instruments Act. On the failure of respondent proving his case and establishing the debt, the complaint ought to have been dismissed. Learned senior counsel would add that a clear explanation on the usage of cheques by respondent and the cheque on which respondent has resorted to a malafide action under section 138 of the Negotiable Instruments Act stood informed in the additional grounds raised before the appellate Court and the same had not received due consideration.
11. Mr.G.Arivarasan, learned counsel for respondent submitted that the agreement dated 22.05.2006 covered the entire extent of 10 acres 60 cents of which a layout had been formed in respect of 10 acres. The agreement provided for extension of time beyond the stipulated date of 22.11.2006 and the same stood extended. This was evident from endorsements made from time to time regards payments had by the petitioner, the last such endorsement being of the date 26.06.2007. A payment of Rs.1.5 crores had been made only in respect of an extent of 10 acres, the approved layout at the agreed rate of Rs.15 lakhs per acre. For the remaining 60 cents, respondent has issued four cheques for Rs.24 lakhs and the same admittedly had been credited to petitioner's account as reflected in Ex.P10, Bank Statement. While the sum of Rs.1.5 crores had been paid by respondent towards the entire approved lay out, two plots therein, Shop Plot No.1 and Plot No.125 of 3,150 sq.ft. had been wrongly conveyed by petitioner to his wife under Exs.P7 and P8, sale deeds dated 15.12.2006. The wife of petitioner was a witness to the agreement, Ex.P6. Under Ex.P9 dated 15.10.2007, petitioner had effected a gift of an extent of 30,100 sq.ft. to his adopted son. Upon the respondent questioning such actions, petitioner undertook to repay the sum of Rs.24 lakhs as also afford compensation in a sum of Rs.36 lakhs.
12. Learned counsel submitted that a perusal of the cross-examination of petitioner in O.S.No.7455 of 2008 on the file of learned XVIII Assistant City Civil Judge, Chennai, would show that the agreement covered the entire extent of 10 acres 60 cents. After having denied the issue of the cheque in a sum of Rs.60 lakhs in his reply notice, in his cross-examination in the present case, he had admitted to handing over the cheque on 18.10.2007. Within three months of having entered into the agreement, the petitioner malafidely had effected transfer of property to his wife. All this had been done behind the back of the respondent, the respondent continuously effecting payments in keeping with the agreement. As against the petitioner's contention of his having given the respondent signed blank cheques, in his suit notice Ex.P13, dated 27.08.2008, the petitioner had informed the date of the cheque as 18.10.2007.
13. On consideration of rival submissions, this Court finds that the admissions of the respondent in cross-examination support the case of the petitioner of the sum of Rs.24 lakhs paid between 23.08.2007 and 13.10.2007 being towards compensating the petitioner towards escalation in land cost and of powers of attorney having been executed by the petitioner in respect of specified plots pursuant to receipt of payments. As rightly observed by the trial Court, there is no evidence, oral or documentary, to substantiate the claim of respondent of the sum of Rs.36 lakhs being compensation payable to him. This Court is unable to accept the submission that as compensation for not effecting sale of 60 cents and two plots, the petitioner had agreed to pay Rs.36 lakhs when the agreed rate per acre only was Rs.15 lakhs. That the cheque of Rs.60 lakhs, Rs.36 lakhs being the compensation component, is said to have been issued on 18.10.2007, i.e., within five days of the last payment made by the respondent on 13.10.2007, renders the respondent's case all the more unbelievable. This Court holds that the petitioner has made out his defence by preponderance of probabilities while the respondent clearly has failed to prove his debt.
This Criminal Revision is allowed. The judgments of the Courts below are set aside. Petitioner is acquitted of all charges. Fine amount, if any paid, shall be refunded to the petitioner. Consequently, connected miscellaneous petitions are closed.
17.12.2014 Index:yes/no Internet:yes/no gm C.T. SELVAM, J.
gm Pre-delivery order in Crl.R.C.No.320 of 2014 17.12.2014 Crl.R.C.No.320 of 2014 C.T.SELVAM, J.
After pronouncing orders, it is brought to notice that during the pendency of this revision, petitioner has deposited sums of Rs.15,00,000/- and Rs.10,00,000/- to the credit of C.C.No.208 of 2008 on the file of learned X Metropolitan Magistrate, Egmore, Chennai, in keeping with the orders of this Court in M.P.Nos.1 and 2 of 2014 dated 14.03.2014 and 12.06.2014 respectively. Pursuant to order of this Court dated 02.04.2014, respondent/complainant has withdrawn Rs.15,00,000/-.
In the light of the present finding acquitting the petitioner of all charges, respondent/complainant is directed to effect refund of Rs.15,00,000/- withdrawn by him to petitioner within a period of three months from today. Petitioner is permitted to withdraw the other sum of Rs.10,00,000/- deposited by him before the Court below on due application.
17.12.2014 gm C.T.SELVAM, J.
gm Crl.R.C.No.320 of 2014 17.12.2014