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TMI Blog2021 (4) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... of clear title in respect of the said property. It is also important to note that the issuance of the cheque has not been disputed, but the only contention taken in the evidence and also in the defence is that the cheques were given as security. In order to probablize the case of the accused, no materials are placed before the Court in support of the contention that the cheques were given as security. On perusal of the records also, there is no any written document of agreement between the parties and though the document is placed before the Court that the cheques were given as security, but the fact that the amount of Rs. 10 Crores was received in order to procure the land in favour of the complainant is not in dispute. The fact that cheques were dishonoured and the endorsement was issued and thereafter, notice was issued and no payment was made in compliance of the demand is also not in dispute - Since the accused has admitted the issuance of the cheque and also the transaction, in the absence of the probable material before the Court, the accused has failed to prove his case on the preponderance of probabilities before the learned Magistrate. When the ingredients of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade the complainant-Company to part into the hands of the accused a sum of Rs. 10 Crores as advance amount for the purpose of securing the land required by the complainant-Company. The payment of Rs. 10 Crores was made by the complainant Company to the accused through two crossed account payee cheques. These two cheques came to be drawn in favour of the accused on the Canara Bank, Industrial Financial Branch, Richmond Circle, Bengaluru. The accused also duly acknowledged the receipt of the payment for a sum of Rs. 10 Crores made in the manner stated above. The payment of the sum of Rs. 10 Crores was made as an advance amount to the hands of the accused. On the strength of the representations made by the accused, complainant-Company learnt from the discrete enquiries made by it that no such land bearing Sy.No.114 of Arekere Village exists, let alone, in the name of the accused or in the name of anyone else and that by an act of deceit, the accused had made the complainant-Company to part into his hand a sum of Rs. 10 Crores. Thus, the accused made unlawful gain to himself. When the said fact came to the knowledge of the complainant, the accused deeply regretted for all the blunders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and for this reason that the accused has chosen to return the amount of Rs. 10 Crores. Inspite of the same, learned Magistrate has given the finding against the complainant and in favour of the accused that the dispute between the parties to the case is of civil in nature and that the complainant already approached the competent Civil Court. The said reasoning assigned by the learned Magistrate has seriously resulted in miscarriage of justice. Learned Magistrate also failed to take note of the fact that the fraud played by the accused upon the complainant is writ large in the records and has committed an error by improper appreciation of evidence. 5. Learned counsel also vehemently contend that it is not in dispute that the cheques are encashed in terms of Ex.P4 and P6 and that the property which he intend to secure in favour of the complainant is tank bund area and the property belongs to the Government. Learned counsel also would submit that the suit in O.S.No.7502/2011 was filed and the same was decreed, on which RFA No.1167/2015 is pending before the High Court. When the material available on record discloses that when the cheques are issued and the same are admitted and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the purview of Section 138 of NI Act. 10. Learned counsel relied upon the judgment of the Apex Court in the case of KUMAR EXPORTS v. SHARMA CARPETS reported in (2009) 2 SCC 513, wherein the Apex Court held that the Court has to accept the valid proof that cheques were not issued by accused in discharge of any debt or liability to the complainant. 11. In reply to the arguments of the learned counsel for the respondent, learned counsel for the appellant would submit that the judgments relied upon by the respondent are not applicable to the case on hand as in the case on hand, there is no contract between the parties. The amount was advanced to the accused to secure the lands and the accused agreed to secure the lands not belong to any private individual or to the accused and the same is the tank area belongs to the Government. Hence, he had agreed to return the money. When once he had agreed to return the money and issued the cheques, he ought to have honorued the cheques. The facts that the amount was received by him, for which, he had issued the cheques and also that the property, which he intend to secure in favour of the complainant belongs to Government, are not in disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the complainant as well as the accused and also having perused the principles laid down in the judgments referred supra by the learned counsel appearing for the respondent and so also the factual aspects of the case in hand, along with the evidence available on record, the accused not disputed the fact that he has received the amount of Rs. 10 Crores. The only contention of the accused is that the subject matter of those two cheques were given as security, but not issued the same towards debt or liability. It is also not in dispute that there was an understanding between the complainant and the accused for securing the land and in pursuance of the said understanding and oral talks between the parties, the amount was given by way of cheques. 16. In order to re-appreciate the material on record, it is appropriate to consider the evidence of the witnesses available on record. The complainant examined one witness and got marked the documents as Exs.P.1 to P20. In the cross- examination, there is no dispute for having paid the amount. It is suggested during the course of cross-examination that during the course of talks between the complainant and the accused, Ex.P4 and Ex.P5 came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 are pertaining to him, but Ex.P20 not belongs to him. He admits that in column No.9 of Exs.P17 to P19, it is shown as kere (pond). He also admits that in column No.12/2 also, the same is mentioned as Government pond. He also admits that in column No.10 of Exs.P.17 to 19, the same is mentioned as pond vide order dated 13.11.1981. He admits that Ex.D.9-the RTC are pertaining to the period from 1970 to 1973. It is elicited that he did not enquire as to whether the RTCs in respect of Sy.No.34 from the year 1973 to 2004 and from the year 2004 till then, are available or not and he would verify and report the same before the Court. He also does not know what is the total extent of the land in Sy.No.34. He also cannot tell on what date, he has collected Ex.D.9. It is suggested that Ex.D9 is created and produced and the same was denied. He also admits that in the Government document, the same is mentioned as Government pond. It is suggested that he, in spite of being aware that the said land belongs to the Government, and a Government pond, he created the documents and tried to sell the property by collecting an amount of Rs. 10 Crores and the said suggestion was denied. 18. Having cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso important to note that when the cheques were issued and the same was dishonoured, the learned Magistrate ought to have invoked the presumption under Section 139 of the NI Act. The accused also not rebutted the presumption under Section 139 of the NI Act. Under the circumstances, the very approach of the learned Magistrate that the dispute between the parties is of civil dispute is erroneous and ought to have convicted the accused for the offence punishable under Section 138 of the NI Act. When the ingredients of the offence under Section 138 of NI is complied, the complainant also initiated the suit and the same has been decreed and an appeal is pending before this Court, both the proceeding are independent proceedings. The very conclusion of the learned Magistrate that cheques were issued for security is also erroneous. Without any material, the learned Magistrate has come to the conclusion that the cheques were issued towards the security and not for payment of debt or other liability and when the accused has accepted the receipt of Rs. 10 Crores from the complainant, the very reasoning given by the learned Magistrate requires to be interfered with by this Court. However, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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