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TMI Blog2022 (4) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... anner and reached to the correct conclusion and there is no illegality or irregularity. But, both the Courts failed to take note of the fact that D.W.1 in his cross-examination says that he made the payment of ₹ 1,00,000/- in favour of the counsel for the complainant and the advocate kept the amount in his scooter and without returning the cheque, he ran away from the spot and he also admits the shara in Ex.D.1. No complaint is filed against the counsel for the complainant when he has received ₹ 1,00,000/- and he ran away from the spot. It is only a oral evidence and no material is placed for having paid the amount to the learned counsel for the complainant to the tune of ₹ 1,00,000/-. It is important to note that in the cross-examination of D.W.1, a suggestion was made by the counsel for the complainant that he sold the quarry worth of ₹ 1,50,000/- and out of ₹ 1,50,000/-, he retained the royalty amount of ₹ 50,000/- and paid the amount of ₹ 1,00,000/- on 05.05.2006 in terms of endorsement made in Ex.D.1 and the said suggestion is denied. There is an endorsement with regard to having made the payment of ₹ 1,00,000/-. It has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly the accused received an amount of ₹ 4,00,000/- i.e., ₹ 3,00,000/- on 25.11.2005 and ₹ 1,00,000/- on 05.12.2005 and the balance advance amount of ₹ 2,00,000/- had to be paid within 45 days from the date of agreement. As per the agreement, the accused had to obtain the permit and he failed to get the permit from the department for transportation of the granite. But due to non-cooperation, the complainant had stopped the quarry operation and informed the same to the accused and accordingly both of them have cancelled the quarry agreement. With regard to repayment of the advance amount, the accused had issued the subject matter of the cheque. When the same was presented, it was dishonoured with an endorsement funds insufficient and hence the legal notice was issued calling upon the accused to comply with the demand. The accused failed to pay the amount and gave untenable reply and hence the complainant filed the case and the Trial Court took the cognizance and thereafter secured the petitioner herein. The complainant in support of his contentions examined himself as P.W.1 and got marked the documents at Exs.P.1 to 10. After the 313 statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 1,00,000/-. Both the Courts have failed to take note of this aspect while considering the material on record. Hence, the learned counsel submits that it requires interference of this Court. 6. Per contra, the learned counsel for the respondent/complainant would submit that it is not in dispute that there was an agreement and the same was cancelled. The petitioner also admits the issuance of the cheque Ex.P.2 and though he contend that he made the payment through Muthu, he has not been examined and the document Ex.P.2 has not been proved. The learned counsel would submit that the endorsement on Ex.D.1 for having received ₹ 1,00,000/- on 05.05.2006, is not disputed but he contends that the said payment was made with regard to the remaining quarry, which was lying and towards that amount, the same was received. The learned counsel submits that the Trial Court as well as the Appellate Court have taken note of this aspect and rightly considered the material on record. The learned counsel submits that the Appellate Court taking note of the material on record only enhanced the fine amount and hence it does not require interference of this Court. 7. Having heard the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No doubt, the petitioner has examined one witness as D.W.2 regarding he is a witness to the said document, but the very execution of the document has to be proved by examining the said Muthu. The said Muthu has not been examined before the Trial Court and hence the Trial Court also not accepted the defence of the petitioner for having paid an amount of ₹ 2,50,000/-. The evidence of D.W.2 is not accepted in view of not proving of the document Ex.P.2. No doubt, there is an endorsement on the said document below the shara of issuance of the cheque for ₹ 3,50,000/- in favour of the complainant. The complainant also not disputes the endorsement i.e., he has received an amount of ₹ 1,00,000/- on 05.05.2006. It has to be noted that the subject matter of the cheque was dated 20.02.2006 and subsequent payment of ₹ 1,00,000/- was made on 05.05.2006. But the counsel would submit that the said payment is towards the pending quarry, which was sold and adjusted towards the same and the said contention cannot be accepted for the reason that the settlement was arrived between the parties in view of the endorsement on 20.02.2006 and the payment is made subsequent to 05.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the spot. It is only a oral evidence and no material is placed for having paid the amount to the learned counsel for the complainant to the tune of ₹ 1,00,000/-. 10. It is important to note that in the cross-examination of D.W.1, a suggestion was made by the counsel for the complainant that he sold the quarry worth of ₹ 1,50,000/- and out of ₹ 1,50,000/-, he retained the royalty amount of ₹ 50,000/- and paid the amount of ₹ 1,00,000/- on 05.05.2006 in terms of endorsement made in Ex.D.1 and the said suggestion is denied. I have already pointed out that though such defence was set out in the cross-examination of D.W.1, the same is not proved. When the transaction was completed in the month of February 2006, the question of selling the quarry and adjusting towards the royalty and making the payment cannot be accepted. There is an endorsement with regard to having made the payment of ₹ 1,00,000/-. It has to be noted that it is the transaction of the year 2005 and the Trial Court while awarding penalty amount is concerned, only awarded the cheque amount. I have already pointed out that for having paid ₹ 1,00,000/- is not given any deducti ..... 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