TMI Blog2020 (12) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... of alleged Sale Deed also, he has not seen the accused, but, the witness has denied the said statement. However, the fact remains that, even according to the complainant, the accused were strangers to him till the date of the Sale Deed. That being the case, even without knowing the accused, how could he came to enter into an agreement of sale with the said accused and with Smt.Lokamatha Seshadri, is not understandable. The complainant, as PW-1, rather than placing his case more effectively and rather than standing by in support of his contention, has in his cross-examination, admitted several of the suggestions favouring the accused and also has made several statements which not only has weakened his case, but, also strengthened the contentions of the accused. To the height of it, the very same PW-1 in his cross- examination has also stated that, in the dishonoured cheques at Exs.P-2 to P-4, it is himself who has filled the name of the `payee' in it. This also supports the contention of the accused that they had never issued the cheques in favour of the complainant, rather, they had issued the cheques in favor of vendors Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab until the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said immovable property to any third party offer. On request of the accused, the appellant and Mr.Mohammed Fayaz asked the original owners to execute the Sale Deed in favour of the accused. Accordingly, the original owners executed the Sale Deed in favour of the accused in respect of the western portion of the said immovable property, measuring 40 ft. x 60 ft. and the respondents together issued three cheques. All the three cheques issued by the respondents came to be dishonoured. Thereafter, a legal notice came to be issued to the respondents. The respondents have neither replied to the legal notice nor paid the amount covered under the cheques. This made the complainant to institute a criminal case against the respondents in the trial Court in C.C.No.15317/2007, for the offence punishable under Section 138 of N.I.Act. 3. The respondents who were the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-14. On behalf of the accused, accused No.2 was examined as DW-1, accused No.1 as DW-2 and two more witnesses as DW-3 and DW-4 and docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him in his complaint. Stating that as a portion of the sale consideration of the western portion of the property bearing No.106, measuring 2,400 sq.ft., the accused had issued three cheques for ₹ 3 lakhs, ₹ 4 lakhs and ₹ 5 lakhs respectively, which were returned dishonoured when presented for realization, he has got produced those cheques at Exs.P-2 to P-4 and the Banker's endorsement at Exs.P-5 to P-8. Stating that he has also issued a legal notice demanding the cheque amount from the accused and the said notice was sent to the accused both under Registered Post Acknowledgment Due, as well under Certificate of Posting, he has produced and got marked copy of the legal notice at Ex.P-9, the postal receipts at Exs.P-10 and P-11, the Certificate of Posting at Ex.P-12 and two postal acknowledgements at Exs.P-13 and P-14 respectively. He was subjected to a detailed cross-examination from the accused side. 13. Accused No.2 - Dinesh Prasad got himself examined as DW-1 and accused No.1 - Prasad got himself examined as DW-2. They also got examined one Sri E.Sheshadri, said to be the husband of one Smt.Lokamatha Seshadri, a co-purchaser of the property and one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sab had agreed to purchase it and in that regard, had also paid an advance sale consideration of ₹ 24 lakhs to the said Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab. It is the further evidence of DW-1 to DW-4 that, DW-4 Syed Ibrahim and Smt.Rahat Unnisa, the joint agreement holders since were not interested to purchase the property, it was DW-2 R.Prasad and Smt.Lokamatha Seshadri, the remaining two joint agreement holders, agreed to purchase the property under the agreement. However, by their enquiry, they came to know that A.S.S.Mudaliyar and Kumaraswamy, the alleged vendors, were not the original owners of the said property and they had no right, title in the property. The original owners of the said property were one Sri N.Bhumi Reddy and Sri Krishna Murthy. Therefore, the agreement holders - R.Prasad (DW-2) and his son Dinesh Prasad (DW-1 - accused No.2) and Smt.Lokamatha Seshadri, informed the same to their vendors - Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab and insisted for execution of the Sale Deed in their favour (purchasers) by the original owners i.e., Sri N.Bhumi Reddy and Sri Kirshna Murthy. Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab were agreeable to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly enforceable debt since they have cheated him and attempted to make a wrongful gain. In his support, DW-1 has also produced a certified copy of the Sale Deed dated 1.6.1984 at Ex.D-3, the certified copies of the two Sale Deeds both dated 7.6.2002 at Exs.D-4 and D-5 respectively to show the flow of title with respect to the subject matter property. He has also got produced a certified copy of the private complaint said to have been filed by one Smt.Madhavi against the original vendors Sri N.Bhumi Reddy and Sri Krishna Murthy and their General Power of Attorney holder Sri A.S.S.Mudaliyar and one Smt.Lokamatha Seshadri, who is the wife of DW-3, at Ex.D-6. Stating that said Smt.Lokamatha Seshadri had filed a civil suit against the said Smt.Madhavi for the relief of injunction, the witness has also produced the certified copy of the plaint in O.S.No.3940/2006, at Ex.D-7 and certified copy of the written statement filed by the defendant in the said suit is marked at Ex.D-8. 16. The evidence of DW-2, DW-3 and DW-4 are on line with the evidence of DW-1 and they have fully supported the evidence of DW-1. All these four witnesses though were subjected to a detailed cross- examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri A.S.S.Mudaliyar and Sri Krishna Murthy, as the owners of the property, had agreed to sell that property to him under an agreement. Therefore, when the alleged subsequent vendor i.e., the complainant himself did not have a valid Sale Agreement in his favour, it cannot be believed that he subsequently had entered into one more agreement with Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab and also with the complainant for the sale of the very same property. Added to the above, the complainant/PW-1 in his further cross-examination has also admitted a suggestion as true that, earlier with respect to site No.106, Sri A.S.S.Mudaliyar and Sri Krishna Murthy had executed an agreement in favour of Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab. He pleaded his ignorance that said Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab entered into an agreement to sell the same property to Smt.Rahat Unnisa. However, since the purchasers insisted for the original vendors to execute the Sale Deed, the subsequent Sale Deeds were came to be executed by Sri N.Bhumi Reddy through Sri A.S.S.Mudaliyar as his General Power of Attorney holder. 18. Therefore, the complainant, as PW-1, rather than placing his ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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