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TMI Blog2020 (10) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused. Void Agreement or not - accused contends that in the grant order there was bar for transfer of lands for 15 years from the date of the grant, therefore, the agreement under Ex.P1 and Ex.R1 were void - HELD THAT:- No such defence was taken before the trial Court and the Appellate Court. The said contention is being raised for the first time before this Court. On that count only the said contention is liable to the rejected - Even otherwise the accused did not produce the grant order or the copy of the grant order to show that there was a bar for alienation. It is a settled position of law that mere agreement to sell does not amount to transfer of property. What would be barred is the transfer of property and not agreement to transfer the property. Therefore, there is no merit in the contention that the agreement was void. Illegal Consideration or not - accused contended that the agreements Ex.P1 and Ex.R1 were void, therefore, as per Section 23 of the Indian Contract Act, 1972 the consideration becomes illegal and the recovery of the same cannot be enforced - HELD THAT:- The contention that agreements was void is already rejected. Apart from that, Section 65 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of ₹ 24,00,000/- on different dates by cash and cheques, but to cheat the complainant, the accused sold the properties to third parties. He further alleged that when complainant questioned, the accused agreed to pay a sum of ₹ 34,00,000/- and towards that liability and issued the Cheque in question which was dishonoured as aforesaid. Thus he sought to prosecute the accused for the offence under Section 138 of the NI Act. 7. The trial Court after taking cognizance summoned the accused. He did not plead guilty. Therefore, trial was conducted. The complainant got himself examined as PW.1 and got marked Exhs.P1 to P8. The accused after his examination under Section 313 of Cr.P.C. got himself examined as DW.1 and got marked documents at Exs.D1 to D5. 8. In the cross examination of PW.1 the accused disputed the sale agreement - Ex.P1, issuance of Cheque Ex.P2, service of notice Ex.P5 and claimed that the owner of the land is the mother of Haseena Bi and the land was granted to him under the Karnataka Land Reforms Act. He contended that Haseena Bi challenged the grant order before the Karnataka Administrative Tribunal ('the KAT' for short) and when the litigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment dismissed the appeal and confirmed the order of conviction and sentence passed by the trial Court agreeing with the reasonings and findings of the trial Court. 13. Sri Shaikh Saoud, learned counsel for the petitioner seeks to assail the impugned orders of conviction and sentence on the following grounds: i) The alleged agreement of sale under Ex.P1 was violative of the provisions of the Karnataka Land Reforms Act and there was a bar to alienate the property for 15 years. Therefore, the memorandum of sale agreement Ex.P1 and the supplemental sale agreement Ex.R.1 are void. Therefore the alleged debt cannot be said to be legally recoverable debt. ii) Ex.P1 and R.1 were apparently concocted and the Courts below failed to appreciate the same. iii) Though the complainant claimed that after entering into the agreements, the accused has sold the property to third parties. The same was not proved. Even as per Ex.P1 the amount received was ₹ 24,00,000/-. But, it does not match with the claim of 34 lakhs or 24 lakhs. iv) The notice Ex.P5 was not served on the accused. v) The Courts below failed to appreciate that complaint filed by the accused against the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant contended that the accused though agreed under Ex.P1 to sell his lands and received ₹ 24,00,000/- as advance sale consideration, cheated him alienating the properties to others. He further alleged that towards discharge of the amount of ₹ 24,00,000/- and damages, accused issued Cheque Ex.P2 for ₹ 34,00,000/-. 18. The accused contended that there was no such agreement of sale. The complainant with the aid of rowdy elements under intimidation obtained the agreement Ex.P1 and Cheque Ex.P2. There was no specific denial of lending capacity of the complainant. The complainant was a retired Air Force Officer. The suggestion to PW1 in the cross examination that he was dismissed from service was denied. Accused did not say so at least in his evidence. Therefore, it can be said that the lending capacity of complainant was not seriously in issue and stood proved. 19. The accused in paras 4 and 10 of his affidavit filed by the way of chief examination admitted his signature on Ex.P1 Ex.P2 and that the Cheque belonged to his account. Under such circumstances, the statutory presumption under Section 139 of the NI Act to the effect that the Cheque was issued tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant herein, admittedly the said proceedings were dismissed by the Magistrate in 2016. That order was not challenged all these years. Therefore, Courts below rightly concluded that the defence set up by the accused was not probabilized and the presumption under Section 139 of NI Act was not rebutted. 26. On this Court reserving the above matter for judgment, Counsel for the accused submitted in the Registry, copy of the petition purportedly filed by the accused under Section 482 of Cr.P.C. for quashing of the order of dismissal of his complaint in C.C.No.3339/2013 for non-prosecution. Those records do not even show that the said petition is registered in this office. Therefore that document in no way advances the defence of the accused that the Cheque was obtained under coercion etc. 27. It was contended that the amount mentioned in Ex.P1 is ₹ 23,00,000/-. Therefore, the Courts below were wrong in accepting that the accused has received ₹ 24,00,000/-. The primary document to be proved was Ex.P2 the Cheque. Ex.P1 was produced to substantiate that the Cheque was issued towards the discharge of liability under a land deal. According to the complainant in all, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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