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TMI Blog2021 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint has contended that he is the proprietor of M/s.NACONS engaged in engineering business, builders and construction. The accused is the proprietor of M/s.Balaji Builders and Developers engaged in the business of realtor and promoter of real estate. The accused being the realtor and promoter of real estate entered into a Memorandum of Understanding (MOU) with the complainant and undertook to procure about 1000 acres of land to complainant in various survey numbers of Kamenahalli, Thindlu and Devanahalli villages, Devanahalli, Bengaluru Rural District, for the purpose of formation of layouts and construction of villas. In pursuance of the said MOU, the complainant gave Rs. 50,00,000/- in cash, Rs. 1 Crore by way cheque dated 09.10.2006, which was encashed by the accused. The complainant also gave further sum of Rs. 5,00,000/- on 27.07.2007 to the accused. In all, the complainant paid Rs. 1,55,00,000/- to the accused. After receiving the said amount, accused failed to secure lands as contemplated in the MOU. As such, accused was liable to return the amount to a tune of Rs. 1,55,00,000/- within one week after one month from the date of MOU. Towards discharge of said liability, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he vehemently contend that the MOU dated 26.09.2006 is specific for having received the amount by the accused and though the accused has received the huge amount he has not acted upon. The accused gave the cheques for refund of the amount for which he has cancelled under MOU and though notice has been issued against him, he did not give any reply and he did not dispute any issuance of cheque. When such being the case, the trial Judge ought not to have acquitted the accused.i 9. The learned counsel relied upon the Judgment in the case of Ripudaman Singh v. Balkrishna reported in (2019) 4 Supreme Court Cases 767, would submit that, when the cheques are issued in pursuance of agreement to sell, the Apex Court held that qualify as being towards legally enforceable debt or liability and amenable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act' for short) in case of dishonour. Further held that, though agreement to sell does not create interest in immovable property, however it constitutes enforceable contract between parties. Any payment made in pursuance of such agreement is duly enforceable debt or liability for purpose of Section 138 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Judge has rightly given the reasoning that the cheques are issued for security not towards any debt or liablility. Hence, the Trial Judge has not committed any error in acquitting the accused. 15. Having heard the arguments of the learned counsel appearing for the appellant/complainant and learned counsel appearing for the respondent/accused and also on perusal of the material available on record, the points that would arise for consideration of this Court are:- (1) Whether the Trial Court has committed an error in acquitting the accused in C.C.No.1761/2009, C.C.No.1763/2009, C.C.No.5682/2008 and C.C.No.8513/2008, respectively, for the offence punishable under Section 138 of the NI Act and it requires an interference of this Court? (2) What order? Point Nos.(1) and (2): 16. Before considering the grounds urged in the appeal and also the respective submissions, this Court would like to refer to the evidence available on record since this Court is having the jurisdiction to re-appreciate the evidence available on record. The complainant in his evidence, he reiterated the complaint averments with regard to the transaction taken place in between them particularly, the MOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a false case in spite of the agreement was cancelled and the said suggestion was denied. He admits that except MOU dated 25.09.2000, they have no agreement or no memorandum of agreement got entered between himself and accused. The MOU was confronted to the witness and he admits that he has not paid any amount through cheques as shown in para No.5 of MOU. But he claims he paid Rs. 50,00,000/- on 26.09.2006 by cash and an endorsement was taken on the said MOU for payment of the said amount. It is suggested that whether he has issued any notice pertaining to non-performing MOU and he replies that he orally informed. He admits that he has received Rs. 5,00,000/- from Bangalore City Police Housing Co-operative Society Limited. The agreement between himself and the said Society came to be cancelled within 6 to 8 months. It is elicited that he does not know whether the accused had purchased property from agriculturist pertaining to layout to be formed for the said Society. It is suggested that he has mis-used the cheques of accused for wrongful gain and the said suggestion was denied. It is suggested that he kept blank signed cheques of the accused at the time of execution of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. Hence, the accused has issued the cheque for return of the amount what has been received. The very conclusion of the Trial Court is that the complainant ought to have approached the Civil Court is erroneous and there is a clause in the agreement itself in the event of failure on the part of the first party to perform this agreement he shall refund the advance amount. The other reason given by the Trial Court is that the cheques are issued towards security is also not based on any record. First of all, the accused has not given any reply to the notice and also he did not dispute the issuance of notice. When such being the case, it is mandate on the part of the Trial Court to draw the presumption under Section 139 of the NI Act. Apart from that, the accused counsel himself suggested that the agreement was cancelled. When the same was cancelled, question of enforcing the agreement does not arise. 20. The Trial Court relying upon the Judgment in the case of M/s.Q-Soft System & Solutions (P) Ltd., v. H.N.Giridhar reported in ILR 2008 KAR 643, came to the conclusion that if contract is broken or agreement is broken, only course opens to aggrieved party is to resort to Civil Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of P.W.1 to believe the defence of the accused that those cheques are issued as security. When there is no such effective cross-examination, the Trial Judge ought not to have come to the conclusion that the cheque might have been issued for security. When the terms and conditions of the agreement is clear in case of default, the amount has to be refunded. When the complainant specifically pleaded that those cheques are issued for refund of the amount for which he has received when he has not given any reply to the notice and when he has not disputed the signature of the cheque, the Trial Judge ought to have drawn the presumption under Section 139 of the NI Act. The Judgment of Rangappa's case (supra), is aptly applicable to the case on hand. The approach of the Trial Court is that the remedy of the complainant is Civil remedy is also erroneous. The Judgment of the Apex Court in Ripudaman Singh's case referred (supra), is aptly applicable to the case on hand. The Apex Court held that, in case of an agreement between the parties and also if any payment has been made categorically held that it constitutes enforceable contract between parties and if any payment is made in pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MOU between the complainant and accused. When such being the case, the Trial Judge ought not to have acquitted the accused. 26. Learned counsel appearing for the accused would submit that the matter may be remanded to the Trial Court since the accused has not led any rebuttal evidence before the Trial Court. The said contention of the accused counsel cannot be accepted when an opportunity is given to him to adduce the evidence and he did not choose to lead evidence and apart from that even then he has received the notice also and he has not given any reply and the defense which he has taken appears to be an after thought. Hence, on the ground of not adducing the evidence before the Trial Court cannot be a ground to remand the matter for fresh consideration. 27. In view of the discussions made above, I proceed to pass the following: ORDER (i) The appeals are allowed. (ii) The impugned Judgments of acquittal dated 03.11.2010 passed in C.C.No.1761/2009, C.C.No.1763/2009, C.C.No.5682/2008 and C.C.No.8513/2008, respectively, on the file of XII Additional Chief Metropolitan Magistrate at Bengaluru, are hereby set aside. (iii) The accused is convicted for the offence punishable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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