9911796707
TMI Blog2021 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... .No.275/2002 by the Principal Civil Judge and JMFC, Dharwad and sought for his acquittal. 2. For the sake of convenience, parties herein are referred with original ranks occupied by them before the Trial Court. 3. The brief facts leading to the case are that the accused is a dealer in real estate business and he has entered into an agreement of sale in favour of complainant on 10.06.1999 as a GPA holder of S.S.Wadeyar in respect of the land bearing survey No.15C/2A/SP measuring 1.81 guntas for total consideration of Rs. 2,40,000/-. The accused is said to have received total amount of Rs. 2,00,000/- from the complainant in phase-wise but he could not complete the transaction as per the agreement and as such he has agreed to refund the earn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f one year. 4. The said judgment of conviction and order on sentence was challenged by the accused in Criminal Appeal No.3/2013 before the learned II Additional District and Sessions Judge, Dharwad. The learned Sessions Judge secured the records and after hearing both the parties and after perusing the records, by judgment dated 30.07.2015 dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Principal Civil Judge and JMFC, Dharwad in C.C.No.275/2002 dated 05.12.2012. Hence, both the judgments are under challenge in this revision petition. 5. The learned counsel for the petitioner would submit that the learned Sessions Judge and the learned Magistrate have failed to appreciate the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant, the accused has issued a cheque as per Ex.P2 in discharge of his legally enforceable liability of Rs. 2,00,000/- towards refund of earnest amount received by him in pursuance of the agreement of sale as per Ex.P1. Admittedly, the said cheque when presented was dishonoured for the reason "insufficient funds". Further there is no dispute that a legal notice has been issued and the accused in spite of service of notice, did not respond by replying to the said legal notice. It is also important to note here that Ex.P2 was returned with an endorsement "insufficient funds". 9. Apart from that, the legal notice also came to be issued which is served on the accused but he did not respond. The postal acknowledgment for having serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his signature on Ex.P2 is forged, but he has admitted his signature on Ex.P7. Even on perusal of his admitted signatures available and signature on Ex.P7, when compared with each other, it is evident that they differ. Looking to the conduct of the accused, both the Courts below have clearly observed that the accused is in the habit of changing his signatures regularly and he has also signed in difference ways before the Courts below. Apart from that, the accused has not denied that Ex.P2 does not belong to him. He has simply asserted that the said cheque was taken by complainant from his house and his signature was forged, but the bank endorsement discloses that the cheque was not returned on the ground that the signature mismatch but it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the proceedings and abuse the process of the Court. The statutory presumption under Section 139 of the Act is in favour of the complainant. The accused has not rebutted the said presumption. His conduct also establishes that he has not taken any steps to rebut the presumption and failed to produce his specimen signatures for the period 1998 to 2003 which led to drawing adverse inference against him. His silence regarding non-issuance of reply notice after receipt of legal notice also establishes that he has issued cheque having knowledge that he has no sufficient amount in his account. Hence, both the Courts below have in detail appreciated the oral and documentary evidence and arrived at a just decision of convicting the accused/appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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