TMI Blog2022 (6) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, shifted from their original agreement due to changed circumstances of non-registration of those deeds. They altered the terms of their contract in respect of payment of money that it would be paid by the accused only after possession of the purchased land was handed over to him by the complainant. Such novation is permissible under Section 62 of the Indian Contract Act, 1872. But the complainant has suppressed the said facts and brought a new story through her complaint petition as indicated above. Unless the complainant could show that possession was duly handed over after registration of those sale deeds and thereafter the cheque was deposited by her, she cannot claim any legally enforceable debt in her favour to be discharged by the accused. This Court is not inclined to interfere with the findings of the Courts below and the order stands confirmed and the prayer in revision stands rejected. - CRL. REV.P NO.42 OF 2020 - - - Dated:- 15-6-2022 - HON BLE MR. JUSTICE T. AMARNATH GOUD For the Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate. Mr. S. Bhattacharjee, Advocate. Mr. K. Nath, Advocate. For the Respondent(s) : Mr. S. Lodh, Advocate. Mr. S. Debnath, Addl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide letter, dated 03.05.2012, informed the Branch Manager, SBI Kunjaban Branch, that, the cheque could not be honoured due to insufficiency of fund in the account of the drawer of the cheque. Thereafter, the petitioner on 25.05.2012, by registered letter with A.D. intimated him and demanded payment within 15 days. But the respondent No.1 did not make payment. On the contrary, after receiving the information of the dishonouring of the cheque by the Banker, the respondent issued a legal notice to the petitioner asking for the handover of the vacant possession of the land described in the sale deeds as per the commitment. 3. It is pertinent to mention here that, in the complaint, it was also stated that, in Civil suit bearing No.TS-25/2011 which was pending in the Court of Civil Judge, Senior Division in between Pulak Das and the Respondent others, the respondent No.1 in a written statement stated that he purchased the land described in those sale deeds and he had got possession of the land. 4. The complaint lodged by the petitioner under Section 138 of NI Act was registered as Case No. NI-9/2012. The accused person, respondent herein, duly appeared before the Court of learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No.42/2017 by the learned Sessions Judge, West Tripura, affirming the judgment dated 22.11.2017, passed in NI-79/2012, by the learned Addl. Chief Judicial Magistrate, West Tripura, Agartala by holding, that the charge framed against the respondent-Prabir Majumder, U/S 138 of NI Act, 1881, had been well established making him punishable under the aforesaid charge. vi. Pass any further order/orders as may be considered fit and proper. 13. Heard Mr. P. Roy Barman, learned Sr. counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioner herein as well as Mr. S. Lodh, learned counsel appearing for the accused-respondent No.1, and Mr. S. Debnath, learned Addl. P.P. for the State-respondent. 14. In the facts of the present case, here it is pertinent to reproduce questions No.11, 12, and 13 of the examination of the accused person under Section 313 of Cr.P.C., which are reproduced herein-under:- Q. No.11:- P.W.2 further stated that after receiving cash money of Rs. One lakhs from you and the cheque amounting to Rs Four Lakh they confirmed the physically and legally possession over the land and the registration was done on 29.2.12 and you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 accused person through his manager Shri Dipak Majumder sent Rs. 1,00,000/- in cash and one account payee cheque amounting to Rs. 4,00,000/- vide cheque No. 116007 dated 29.02.2012 amounting to Rs. 4,00,000/- in favour of me under I.D.B.I. Bank Ltd. On receipt of cash money of Rs. 1,00,000/- and cheque amount of Rs. 4,00,000/- in total Rs. 5,00,000/- myself, my brother and sister appeared before the Sub-Registrar, Sabroom and admitted the execution of those sale deeds and those sale deeds were duly registered and on that date we delivered possession to the accused person and since then the accused person has been possession his purchased land as truefull owner in possession. These are true to my knowledge. 3. That therefore, I presented the said cheque in question which was issued by accused person to me for its encashment to the Branch Manager, S.B.I., Kunjaban Branch and Branch Manager, S.B. I., Kunjaban Branch sent the said cheque to I.D.B.I. Bank Ltd., Agartala branch and the Branch Manager, I.D.B.I. Vide his letter dated 03.05.2012 informed the branch Manager, S.B.I., Kunjaban branch, Agartala that said cheque was dishonoured due to insufficiency of fund in his ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by Tulu Rani Das (Majumder) to Prabir Kr. Majumder in 2 addresses. V. Reply of Demand Notice of Sri. Prabir Majumder through his counsel Pinky Saha (Banik), Advocate, dated 08.06.2012. 16. In the cross-examination, the complainant as P.W.1 stated thus:- I have submitted my affidavit and the compliant petition after going through the contents. The notice was also issued as per my instruction. I have not mentioned in my demand notice that the cheque was dishonoured for reason code 17 alteration require drawers authentication . Pulak Das in my Khurtoto brother. At this juncture the affidavit dated 29.02.12 is exhibited as Exbt.A on prayer of the defence(Subject to objection by the complainant) The defence counsel drawn attention of the witness to another affidavit dated 15.11.11. sworn by her and on her identification the same is marked as Exbt.B. Prabir Kr. Mazumder never took any loan from me. I do not know what has been written in my complaint and it appears that it has been wrongly mentioned in my complaint that the accused took loan of Rs.5,00,000/- from me. I have also wrongly mentioned in my demand notice that accused took loan of Rs.5,00,000/- from me. The ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umder) subsequently told to Sri Majumder that we the deponent will appear befoe the Sub-Registrar today for the purpose of registration and requested Sri Majumder to repay the said money and accordingly-Sri Majumder without consent issued the cheque bearing No. 116007- dated 29.02.12, of Rs.4,00,000/-(Rupees Four lakh) under IDBI, Bank Agartala-Branch in the name of employee-Dipak Majumder to hand over the said cheque to us and to hand over Rs.1,00,000/-(Rupees one lakh) in cash and we with full satisfaction have received the said cheque and cash money from his employee Dipak Majumder These is true to my knowledge. 4. That we the deponents are giving undertaking that we shall hand over the possession of sold land in favour of Sri Prabir Majumder after such delivery of possession, we shall deposit the said cheque for its encashment. We further receiving undertaking that prior to hand over the possession of the sold out land to Prabir Majumder, we shall not deposit the said Cheque in Bank for its encashment. These are true to my knowledge. 18. The learned Chief Judicial Magistrate in order and judgment dated 22.11.2017 passed in NI.79 of 2012 acquitted the accused person h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire claim of the complainant will go away. It appears that the recitals of sale deed are not tailor made but are cut paste. 23. Now, coming to the affidavits sworn by the parties, it appears that the accused in his affidavit (Exbt.6) dated 15.11.2011 asserted that he had received Rs.5,00,000/- from the complainant in urgent need of money with a further assertion that when the deeds will be executed in his favour, he will be responsible to make the payment. The said affidavit to be executed after the registration of sale deeds were kept in abeyance due to objection raised by one Pulak Das. This affidavit no doubt supports the story of the complainant about receiving back Rs.5,00,000/- by the accused, but on the same day, the complainant also swore one affidavit under Exbt.B asserting that as the sale deeds were not executed (actually it would be 'not registered') due to such objection of Pulak Das, she decided to return the money of Rs.5,00,000/- to the accused. Accordingly, she had returned the same. However, after about three months therefrom, the said complainant and her two co-sharers again swore another affidavit on 29.02.2012 (Exbt.A) wherein they asserted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her contended that The owner-petitioner herein having received Rs.1,00,000/- in 2012 from the accused person, the respondent No.1 herein is entitled to get interest on Rs.1,00,000/-. Learned counsel also submits that they are not interested in the protracting the litigation and will not claim any right over the property. 26. In view of the disputed question of facts with regard to sale transaction and the issue of legally enforceable debt, this Court is not inclined to interfere with the findings of the Courts below and the order stands confirmed and the prayer in revision stands rejected. 27. However, in order to put a quietus and to end this litigation amongst the petitioner and the respondent, this Court while appreciating the contention of both the learned counsel which is made in all fairness, disposes of this instant revision petition with the following directions:- i) The owner/complainant shall return Rs.1,00,000/-(Rupees one lakh only) to the purchaser/respondent with the simple interest of 6 % per annum (from February 2012 till its realisation). The same shall be payable within a period of 2(two) months from today i.e. on or before 15.08.2022. ii) The purc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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