IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 26TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI CRIMINAL APPEAL No.266 OF 2011 BETWEEN:
SRI G RAJENDRAN S/O M GUNDAPPA R/O 39/C, ARTILLERY ROAD, 4TH CROSS, HALASURU BENGALURU.
….APPELLANT (BY SRI. RAJENDRA S ANKALKOTI, ADVOCATE) AND:
SRI MATHEW N J S/O N J JOB NO.63, SECRED HEART ROAD, T C PALYA, K R PURAM BENGALURU-560 036.
….RESPONDENT (BY SRI. M GIRISH, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 9.2.11 PASSED BY THE XIV ADDL. C.M.M., BANGALORE IN C.C.NO. 78221 OF 2009- ACQUITING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant-complainant aggrieved by the order dated 9.2.2011 passed in C.C.No.78211 of 2009, this appeal is filed.
2. Facts of the case are as follows :
The respondent/accused claiming to be the owner of the site bearing No.60/2, katha No.24-P at Basavanapura Village, K.R.Puram Hobli, Bengaluru, had entered into an agreement of sale with the appellant on 19.9.2006 for a consideration of Rs.12,25,000/- and received Rs.1,00,000/- in part consideration amount and thereafter the respondent demanded and received a total sum of Rs.13,80,000/- on various dates including penalty for delayed payment of a sum of Rs.1,55,000/-. Thereafter the respondent could not execute registered sale deed as he was not owner of the property. He was only an agreement holder. The respondent promised to repay the entire amount with extra amount of Rs.3,50,000/- as compensation. In this regard, final settlement came to be executed on 2.11.2007 but the respondent did not repay the entire amount but he has repaid the total sum of Rs.12,30,000/-. He has issued a cheque bearing No.346232 dt.25.8.2008 for Rs.5,00,000/- drawn on Syndicate Branch, Garden City College Branch, Bengaluru, towards compensation amount as alleged to have been agreed by the respondent. The appellant presented the said cheque for encashment. The said cheque was returned dishonored with an endorsement “funds insufficient”. The Bank has issued an endorsement dt.18.2.2009.
After receipt of the said endorsement, the appellant issued a legal notice on 18.3.2009. The said notice was served on the respondent. Respondent replied the said legal notice. Appellant after receipt of the reply to the legal notice, has filed a complaint under Section 200 Cr.P.C. for the offence punishable under Section 138 of the N.I.Act.
The trial Court has recorded sworn statement and took cognizance of the offence. Thereafter, passed an order registering a criminal case against the respondent for the offence punishable under Section 138 of the N.I.Act and issued summons to the respondent. The respondent appeared and was enlarged on bail and he has not pleaded guilty but claimed to be tried.
The case was posted for trial. The appellant in support of his claim, got examined himself as PW1 and got marked exhibits P1 to P11. Incriminating circumstance in the evidence of the complainant was read over to the respondent under Section 313 Cr.P.C. The respondent has not chosen to lead his evidence. The trial Court after considering the evidence and the documents produced by the complainant, acquitted the respondent for the offence punishable under section 138 of N.I.Act.
The appellant aggrieved by the order passed in CC.No.78221 of 2009 dated 9.2.2011 passed by the 14th Additional Chief Metropolitan Magistrate, Bengaluru has filed this appeal.
3. Heard the arguments of the learned counsel for the appellant. The respondent is absent.
4. The contention of the appellant is that the respondent has entered into an agreement of sale and the appellant has paid the entire consideration amount but the respondent could not execute a registered sale deed. So, they have entered into a settlement as per Ex.P2.
5. The appellant admits that he has received the entire consideration amount paid by him to the respondent. The only contention of the appellant is that the respondent had agreed to pay compensation of Rs.5,00,000/- for delayed payment and for the said reason, the respondent has executed a final settlement deed dt.2.11.2007 as per Ex.P2.
6. In pursuance of the said Ex.P2, the respondent issued a cheque of Rs.5,00,000/-, as per Ex.P3, towards compensation amount. In fact, by perusing Ex.P7 legal notice, it does not indicate that the respondent has executed Ex.P2. There is no reference about Ex.P2 which came to be executed on 2.11.2007 in the legal notice issued on 18.3.2009. If the respondent has executed Ex.P2, there would have been a reference about the same in the legal notice Ex.P7. The appellant has failed to prove that the respondent has executed Ex.P2 and that he is liable to pay compensation of Rs.5,00,000/- as per Ex.P2.
7. The respondent has denied the execution of Ex.P2. The appellant has not proved the contents of the said document and has not examined any attesting witness. He has only got marked the documents. Mere marking of the documents does not dispense its proof. The appellant has to prove the contents of the document by examining the attesting witness. In the present case, the appellant has not examined the attesting witness nor proved the contents of Ex.P2.
8. Further, PW1, i.e., the appellant, in the course of cross examination has clearly admitted that he has received the entire amount of Rs.12,25,000/-. When the appellant has already received the amount from the respondent, there cannot be any agreement between the appellant and the respondent in regard to payment of compensation amount. The appellant has failed to prove that the respondent has agreed to pay the compensation amount of Rs.5,00,000/- and in this regard, he has issued a cheque. The appellant has failed to prove that Ex.P3- cheque was issued towards legally recoverable debt.
9. The trial Court after considering the material on record has held that the appellant has failed to establish that no legally enforceable debt is due by the respondent and has rightly acquitted the respondent. The appellant has not made out any grounds to interfere with the impugned order. I do not find any grounds to interfere with the impugned order.
10. Hence, I proceed to pass the following.
ORDER Appeal is dismissed.
SD/- JUDGE rs