Karnataka High Court
Sri. A. Ramesh Arun vs Smt S Girija Shivaram on 7 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.259/2020(A)
BETWEEN:
SRI. A. RAMESH ARUN,
MANAGING DIRECTOR,
M/S R. ARUNACHALAM
PROPERTIES CONSULTANTS AND
PROMOTERS PVT. LTD.,
REGISTERED OFFICE AT NO.201,
2ND FLOOR, ROYAL CORNER,
NO.1 AND 2, LALBAGH ROAD,
BENGALURU-560 027,
AND AT:
NO.183, IN BETWEEN SHAKTI HILL RESORTS
AND SHANMUKHA TEMPLE, 4TH STAGE,
RAJARAJESHWARINAGAR,
BENGALURU-560 098,
(REPT BY: MR. A. RAMESH ARUN)
....APPELLANT
(BY SRI. PARTHA .M, ADVOCATE)
AND:
SMT. S. GIRIJA SHIVARAM,
W/O SRI. G. SHIVARAM,
R/A NO.35, 2ND MAIN, 3RD CROSS,
ITTAMADU EXTN., BEHIND TERRACE GARDEN,
III STAGE, BANASHANKARI,
BENGALURU-560 085
.... RESPONDENT
(BY SRI. KRISHNA .S. VYAS, ADVOCATE)
2
THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
DATED:08.01.2020 PASSED BY THE XX ADDL.C.M.M.,
BENGALURU IN C.C.NO.4400/2014-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.11.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/complainant under
Section 378(4) of the Code of Criminal Procedure, 1973 (for
short 'Cr.P.C.'), challenging the judgment of acquittal
passed by XX Additional Chief Metropolitan
Magistrate, Bengaluru City, in CC.No.4400/2014, dated
08.01.2020.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them before
the trial Court.
3. The brief factual matrix leading to the case are
as under:
The accused is known to complainant since several
years and carrying business in the construction and
development of properties. The complainant had sold 12
acres of land to the accused and said sale deed was duly
registered in the sub-registrar office. It is also alleged that
complainant had business transaction in connection with
buying, selling and marketing properties. In this connection,
the accused has issued a cheque bearing No.003326,
dated 27.03.2013 for Rs.25,00,000/- drawn on Sri
Thyagaraja Co-Operative Bank, Channasandra Branch,
Uttarahalli, Bengaluru and when the said cheque was
presented for encashment through his banker, the same
was returned with an endorsement as "funds
insufficient". As per request of the accused, the
complainant represented the said cheque again, but again it
was returned for "funds insufficient". Hence, he has issued a
legal notice dated 12.06.2013 which was duly served and
accused did not respond to the legal notice. Hence,
complaint came to be lodged.
4. The learned Magistrate after recording the
sworn statement and after appreciating the documentary
evidence, has taken cognizance and issued process against
the accused. Accused has appeared through his counsel and
was enlarged on bail. The plea under Section 138 of the
Negotiable Instruments Act, 1881 (for short 'N.I. Act') is
framed against accused and same is read over and
explained to him. Accused pleaded not guilty and claimed to
be tried.
5. To prove the guilt of the accused, the Managing
Director i.e., complainant was examined as PW1 and he
placed reliance on 12 documents marked at Ex.P1 to
Ex.P12. After the conclusion of the evidence of the
complainant, the statement of accused under Section 313
Cr.P.C. is recorded to enable the accused to explain the
incriminating evidence appearing against her in the case of
the complainant. The case of accused is of total denial. The
accused herself got examined as DW1 and she placed
reliance on 15 documents marked at Ex.D1 to Ex.D15.
6. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has acquitted the accused for the offence
punishable under Section 138 of the N.I. Act by exercising
his powers under Section 255(1) of Cr.P.C. Being aggrieved
by this judgment of acquittal, the complainant is before this
court.
7. Heard the arguments advanced by the learned
counsel for appellant as well as learned counsel for the
respondent. Perused the records.
8. The learned counsel for appellant would
contend that the cheque and signature have been admitted
and presumption is in favour of the complainant. He would
also contend that the learned Magistrate has failed to
appreciate the oral and documentary evidence in proper
perspective and sought for admitting the appeal by
convicting the accused/respondent herein.
9. Per contra, the learned counsel for respondent
would support the judgment of acquittal passed by the
learned Magistrate.
10. It is the contention of the complainant that he is
the owner of land and 12 acres was sold to accused and
total extent of land was 17 acres and 13 guntas. There is no
serious dispute of the fact that the complainant was owner
of 17 acres and 13 guntas and he sold an extent of 9 acres
in favour of accused and 3 acres in favour of other persons
at the instance of accused and sale deed were executed. It
is also an admitted fact that accused has already paid an
amount of Rs.5,04,25,000/- including the consideration
amount of Rs.81,00,000/-. Further, accused is required to
pay Rs.15,50,000/- towards registration of 5 acres and 13
guntas of additional land.
11. It is the contention of the accused that
complainant dodged the registration initially under the
ground that same would be done after approval of layout
and even after approval of layout, no sale deed has been
executed in favour of the accused, but the complainant
raised a demand of Rs.1,00,00,000/- in addition on the
ground of escalation in prices. It is the specific contention
of the accused that, towards the registration of 5 acres and
13 guntas he has issued blank cheques in the
year 2009, but the same has been misused by creating a
Memorandum of Understanding dated 22.09.2009.
12. The allegations of the complainant made in the
complaint disclose that the disputed cheque was issued
towards sale consideration of 12 acres of land purchased by
her from the complainant. But in the cross-examination,
PW1 admitted that the entire consideration pertaining to 12
acres of land is received and further admitted that
regarding sale deed dated 27.12.2006 no amount is due. He
further deposed that regarding 5 acres and 13 guntas no
sale deed was yet executed, but complainant asserts that
under Memorandum of Understanding accused is required to
pay the amount.
13. All along, the allegations of the complaint and
examination-in-chief disclose that this cheque was issued
towards sale consideration, but admittedly, the entire sale
consideration pertaining to 12 acres of land is already
received by the complainant as admitted by PW1. Further,
admittedly, regarding 5 acres and 17 guntas no sale deed
was executed, but reliance was placed on Memorandum of
Understanding. But a Memorandum of Understanding is
required to be proved in a civil litigation and liability will be
a civil liability. Further, when the sale deed itself is not
executed, it cannot be termed as a legally enforceable debt
and if there is any breach of conditions of agreement, it is
open for the complainant to prosecute the accused before a
Civil Court. Hence, it is evident that regarding sale there is
no due to the complainant and regarding sale deed dated
27.12.2006, there is no legally enforceable debt. Apart from
that, the remaining 5 acres and 13 guntas was not sold in
favour of the accused and as such, the question to pay the
said amount does not arise at all.
14. During the course of the evidence, PW1 tried to
make out a case that sale deed pertaining to 5 acres and 17
guntas were executed in favour of different purchasers and
the sale consideration was appropriated by the accused. But
that was not the case made out by the
complainant. Further, on perusal of memorandum of
agreement-Ex.D1 it is evident that the complainant was
required to execute a General Power of Attorney in favour of
accused. But admittedly, till today, no power of
attorney was executed in favour of accused to deal with the
said property of 5 acres 17 guntas. Then the complainant is
not certain as to on what basis he is enforcing the
agreement and it appears that a civil litigation was tried to
be given a criminal colour.
15. Apart from that, from Ex.D3 to Ex.D15 it is
evident that both complainant and accused together sold
some of the properties in favour of third purchasers and
accused has developed them. In that context when it is a
joint sale, question of accused paying the amount to the
complainant does not arise at all. Admittedly, there are
number of other civil disputes pending between the parties
and they have no bearing on this transaction.
16. All along, it is the assertion of the complainant
that cheque was issued on 27.03.2013, but PW1 in his
cross-examination admitted that the cheque was issued in
the year 2006. In that event, the transaction is clearly
barred by law of limitation also. Admittedly, sale deed is
executed in the year 2006 and as per admission given by
PW1, cheque was issued in 2006 itself. In that event, the
question of issuing cheque in 2013 does not arise and PW1
further admitted that from 2006 to 2014, no notice was
issued or no correspondence was made regarding due under
the cheque that clearly discloses that even if it is held to
be a legally enforceable debt, it is barred by the law of
limitation.
17. The complainant in the evidence tried to make
out a different case and all along it is alleged in the
complaint that the cheque was issued towards sale
consideration of 2006, but PW1 himself has admitted that
the entire consideration under the sale deed of 2006 is
received. Now during the course of evidence, a different
story tried to be invented regarding cheque being issued
under Memorandum of Understanding but there is no such
pleading in the complaint. The evidence lead by the
complainant is inconsistent and contrary. The admissions
given by PW1 completely destroys the case of the
complainant.
18. The other interesting aspect is that admittedly,
the transaction was between M/s.R.Arunachalam Properties
Consultants and Promoters Pvt. Ltd., and accused. The
complaint was not lodged by Arunachalam Properties, but it
was filed by Managing Director disclosing his name and his
designation as Managing Director. At no stretch of
imagination, only on the basis of showing his designation it
cannot be presumed that the complaint was on behalf of the
Company. Even in the legal notice, the notice was issued on
behalf of A.Ramesh Arun i.e., PW1 disclosing his status as
Managing Director and notice was not issued on behalf of
M/s R.Arunachalam Properties. Though authorization is
produced but the complaint was filed in individual
capacity. Even on this count also the complaint is liable to
be dismissed.
19. The complainant has failed to establish any
legally enforceable debt under Ex.P1-cheque and the
complaint is also not filed by the Company and complaint
should be in the name of Company represented
by Managing Director but here it is vice versa. Looking to
these facts and circumstances, it is evident that the
complainant has not made out any prima facie case for
admitting the matter. The learned Magistrate has
appreciated the oral and documentary evidence in detail in
accordance with law and has rightly acquitted the
accused. No illegality or perversity is found in the judgment
of acquittal. Hence, the appeal being devoid of any merits,
does not survive for consideration and accordingly, it stands
rejected.
Sd/-
JUDGE
DS
