9911796707
TMI Blog2022 (4) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... known to each other and have entered into an agreement on 01.12.2005, for granite business and the complainant had to advance an amount of Rs. 6,00,000/- to the accused and accordingly the accused received an amount of Rs. 4,00,000/- i.e., Rs. 3,00,000/- on 25.11.2005 and Rs. 1,00,000/- on 05.12.2005 and the balance advance amount of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to Rs. 5,25,000/- from Rs. 3,50,000/-. Hence, these two petitions are filed by the accused before this Court. 5. The main contention of the learned counsel for the petitioner before this Court is that both the Courts have committed an error in coming to the conclusion that there was a liability on the part of the petitioner. It is contended that the complainant has taken the blank signed cheque from the petitioner, which is in dispute, as security having paid the advance amount of Rs. 4,00,000/- at the time of execution of the agreement. The same has been misused inspite of he has received the amount of Rs. 3,50,000/- and the counsel would submit that the complainant had sent his Manager one Mr. Muthu to collect the amount from the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 counsel for the petitioner and the learned counsel for the respondent and also on perusal of the material on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in convicting the petitioner for the offence punishable under Section 138 of the NI Act and sentencing to pay fine of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount of Rs. 3,50,000/- and also admitted that he issued the cheque on 20.02.2006 in favour of Sri E. Shankar/complainant. The cheque number is also mentioned. The petitioner also not disputes the fact of issuance of the said cheque, which is marked as Ex.P.2. But the defence of the petitioner is that an amount of Rs. 2,50,000/- was paid in favour of one Muthu, who is the Manager of the respondent. But in the cross-examination of P.W.1, he categorically denied with regard to the employment of Muthu. 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 Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein acknowledgment is made with regard to the issuance of cheque for an amount of Rs. 3,50,000/-. The Trial Court while passing the order, on appreciation of the material on record, though discussed in detail in paragraph No. 13 regarding agreement, the document Ex.D.2 and also cross-examination and issuance of cheque for an amount of Rs. 3,50,000/-, not accepted the evidence of D.W.2 regarding payment of Rs. 2,50,000/-. But failed to take note of the endorsement made by the respondent/complainant for having received an amount of Rs. 1,00,000/- on 05.05.2006 subsequent to the cancellation of the agreement after four months. The Appellate Court while confirming the order of the Trial Court though discussed in detail, not accepted the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 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 Rs. 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 Rs. 1,00,000/- is not given any deduction since the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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