9911796707
TMI Blog2021 (9) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ammal and Shyamala are the absolute owners of the land measuring to an extent of 2 Acres 92 cents, comprised in Survey Nos. 492/2, 495/2C, 495/2B, 493/3, 493/2C, 509/2B and 508/1, situated at Kerugambakkam, Sriperumbudur Taluk, Kancheepuram District. They intended to sell their properties, and hence, they approached the petitioners, who are into the said business, and had entered into an agreement with the present land owners and also with the other land owners on various dates and thereafter, a combined General Power of Attorney, dated 05.12.2014, was executed between the respondent's family members and the petitioners and the same was registered as Document No. 9026 of 2014 before the Sub-Registrar's Office, Pammal, Chennai. 2.3. After execution of the General Power of Attorney, the petitioners divided the larger extent of land into plots and formed a layout in the name and style of "Sai Avenue" and started selling the plots to third parties and receiving the sale consideration on behalf of the respondent and her family members. 2.4. On account of such sale transactions, the respondent/complainant is also entitled to the share in the sale consideration received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quash the said complaint in C.C. 4642 of 2015, the accused have approached this Court by way of this Criminal Original Petition. 4. The petitioners/accused state that the respondent herein, who is the complainant, filed a complaint under Section 138 of the N.I. Act, in C.C. No. 4642 of 2015, on the ground that the petitioners are alleged to have issued a cheque bearing No. 003983, dated 05.01.2015, drawn on Tamil Nadu Mercantile Bank, Porur Branch, Chennai, for an amount of Rs. 6,41,000/- and have mischievously and intentionally allowed the cheque to be dishonoured with an ulterior motive to cheat the respondent/complainant. The petitioners and the respondent and her family members entered into a Power of Attorney on 05.12.2014 to sell their properties. After the execution of the Power of Attorney, the petitioners herein improved the property and the same was divided into plots and sold to various parties, and at the time of sale, the petitioners handed over the respective shares of the respondent and her brother and sisters by way of cash, cheques or Demand Drafts. 5. The petitioners would further state that, on the process of selling the plots to the 3rd parties, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of India, West Mambalam Branch, Chennai, and she presented the same and encashed on 11.02.2015. Likewise, the other family members had also received cheques from M/s. Jain Properties on behalf of the petitioners and also encashed the cheques. 8. The petitioners further submit that the respondent and one of her sisters (Shyamala), without returning the cheques issued by the petitioners for the security purpose, had presented the cheques of the petitioner once again without the knowledge and consent of the petitioners in order to usurp money from the petitioners in an illegal manner. Only when the respondent sent a legal notice, the petitioners came to know that the cheques were presented by the respondent and her sister Shyamala. Thereafter, the petitioners requested them to return the cheques issued by them, but to the utter shock and dismay of the petitioners, the respondent and her sister informed that the petitioners had made delay in making payment and since the property values had also subsequently increased, they need further amount, and hence, refused to return the cheques. Hence, the respondent has filed the complaint to extract more money from the petitioners in an ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent/complainant, for an amount of Rs. 20,00,000/-. Therefore, the learned counsel submitted that, as they have already settled the entire amount, the complaint lodged by the respondent has to be quashed. 12. The learned counsel for the petitioners invited the attention of this Court to the reply notice sent by the petitioners, dated 07.04.2015, and submitted that, as per the agreement and understanding between the petitioners and the respondent and her family members, whenever sale took place, the petitioners used to pay the sale consideration amounts, however, after selling major portion of property, the petitioners offered their willingness to buy the rest of the property on their own and hence, the petitioners issued the aforesaid cheque bearing No. 003983, dated 05.01.2015, for a sum of Rs. 6,41,000/- and it was clearly informed that the cheque was issued only for security purposes and after mobilizing funds, the same will be handed over to the respondent and it was agreed by the respondent that, at the time of repayment, she would return the aforesaid cheque given by the petitioners. 13. The learned counsel for the petitioners further submitted that the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque and the burden lies upon the accused to rebut the presumption by adducing evidence. 17. The learned counsel for the respondent further submitted that, in the reply notice, the petitioners have claimed a sum of Rs. 1,00,000/- as compensation for damages. The learned counsel contended that, when there are lots of transactions between the petitioners herein and the respondent and her family members, wherein their properties are being sold, there are so many different amounts to be paid to the respondent and her family members and that being the case, the contention of the petitioners that they have settled the final amount through M/s. Jain Properties for a sum of Rs. 6,41,000/- by way of cheque bearing No. 2028536, pertains to a different transaction and there is no full and final settlement between the parties so far and the said act of the petitioners to grab more money cannot be accepted by the respondent/complainant. 18. In response to the aforesaid submission of the learned counsel for the respondent, the learned counsel for the petitioners submitted that, only since the entire money has been settled through M/s. Jain Properties, the petitioners have issued "Stop Payment" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is very clear that the issuance of the disputed cheque by the petitioner is admitted and established. Primarily, once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque and the burden lies upon the accused to rebut the presumption by adducing evidence. As held by the Hon'ble Supreme Court in the case of Rajeshbhai Muljibhai Patel (supra), until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain and it is for the accused to adduce evidence to rebut the statutory presumption. The Hon'ble Supreme Court has further held that the case therein involves various disputed questions of facts which need to be adjudicated after the parties adduce evidence, and the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though the Court has power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc., criminal complaint filed under Section 138 of the N.I. Act ought not to have been quashed and further ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
