9911796707
TMI Blog2022 (2) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Instruments Act (for short 'N.I. Act'). It is the case of the respondent that the petitioner had entered into an agreement with one Ramakanth Revankar for purchasing 8 guntas of land out of 1 acre 10 guntas in Sy. No. 214-1B, Khata No. 332 of Kodigehalli, Yelahanka Taluk, Bengaluru North Taluk. The petitioner wanted to construct a multi-storied residential apartment in the land that he wanted to purchase and since he was in dearth of money, he approached the complainant to develop the property jointly and in this regard they entered into a Memorandum of Understanding (MoU) on 5.5.2006. In terms of the MoU the complainant and one Ananda Kumar paid a sum of Rs. 19,50,000/- to the petitioner. Later on the petitioner failed to obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his case on the MoU marked Ex. P.5, its terms only indicate that the respondent agreed to lend to the petitioner an amount of Rs. 12,00,000/-. MoU came into existence for development of a landed property which the petitioner wanted to purchase from one Ramakanth Revankar for a total sale consideration of Rs. 14,00,000/-. By the time MoU was executed, the petitioner had already paid Rs. 7,00,000/- to Ramakanth Revankar and that the respondent under took to pay the balance of Rs. 7,00,000/- directly to Ramakanth Revankar besides Rs. 5,00,000/- to the petitioner for his personal commitments. That means the total sum payable under MoU was only Rs. 12,00,000/-. But the endorsements made on the MoU, which are disputed by the petitioner, indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of N.I. Act. Hence he prayed for upsetting the judgments of the courts below and acquitting the petitioner. 5. Learned counsel for the respondent Sri. Y.H. Ganesh Bhat, submitted that when both the courts below have concurrently held on facts that the petitioner issued the cheque in question for discharging the liability, in the revision petition interference with the findings on the facts is not permitted. The petitioner admits his signature on the cheque. He admits Ex. P.5, the MoU. His evidence clearly shows to have received money from the respondent on different dates. He also admits that he received a certain sum of money from Ananda Kumar. In this view the trial court in the first instance properly came to conclusion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endorsement dated 01.05.2006 marked as Ex. P.5 is not credit worthy. Having observed so, the appellate court yet holds that since the petitioner has not been able to dislodge the presumption in view of inconsistency in his evidence, the petitioner can be held guilty for the offence under Section 138 of N.I. Act. 8. In my considered opinion both the courts have failed to comprehend the evidence. Undoubtedly there is no proper application of mind to the facts and the evidence brought on record. Firstly if the premise on which the respondent initiated action against the petitioner is seen, it can be gathered from the averments made in the complaint that the respondent made payment of Rs. 19,50,000/- to the petitioner as per the terms of Ex. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally enforceable debt. This document shows liability of Rs. 12,00,000/- only. Payment of incidental charges did not arise because the sale deed was not executed. DW1, i.e., the petitioner has stated in para 4 of his affidavit that the respondent did not pay Rs. 2,50,000/-. The petitioner has admitted to have received only Rs. 4,50,000/-. The counsel for the respondent referred to one answer of D.W.1 in his cross examination that he received one payment from Ananda Kumar and submitted that this admission would prove the transactions. But this argument cannot be accepted, for it is just a stray answer. If the tenor of cross-examination of P.W.1 and questions put to D.W.1 are seen, what appears is that he has not accepted to have received R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
