TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 903
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.... accused to pay the Cheque amount. 4. Acknowledgment regarding delivery of notice was not received. Therefore, the complainant's counsel corresponded under Ex.P7 to the Post Master to clarify about the status of the delivery of the notice. Under reply Ex.P8 dated 22.09.2008 the Senior Superintendent of Post Office, Bengaluru East informed that the article/notice was delivered on the addressee on 07.08.2008. 5. Thereafter the complainant filed the complaint in PCR No.11476/2008 before the XIV Additional Chief Metropolitan Magistrate, Bengaluru against the accused to prosecute him for the offence punishable under Section 138 of the NI Act. 6. The complainant alleged that under the memorandum of sale agreement dated 09.02.2007, the accused agreed to sell his lands bearing Sy.Nos.27/1 measuring 1 acre 5½ guntas, 27/2 measuring 37½ guntas and 28/2 measuring 1 acre 7½ guntas of Doddappanahalli village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District. He further alleged that the accused received advance consideration of Rs. 24,00,000/- on different dates by cash and cheques, but to cheat the complainant, the accused sold the properties to third partie....
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....t the presumption by adducing acceptable evidence. iv) Though the accused filed complaint as per Ex.D1 in PCR No.41/2008 against the complainant herein, in the said case, the Police filed B report. Therefore, the contention that the Cheque was obtained under duress cannot be accepted. 11. The accused challenged the said judgment and order in Crl.A.No.25043/2012 before the 57th Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-58). Before the first Appellate Court both the complainant and accused filed applications under Section 391 Cr.P.C. seeking leave to adduce further evidence. The First Appellate Court by order dated 03.08.2015 allowed the applications and permitted both the parties to lead further evidence. Thereafter before the Appellate Court the complainant was examined as RW.1 and got marked Ex.R.1. In the cross-examination of RW.1 Ex.P.1 to P5 were marked on behalf of the accused by way of confrontation. 12. The First appellate Court on hearing the parties by the impugned judgment dismissed the appeal and confirmed the order of conviction and sentence passed by the trial Court agreeing with the reasonings and findings of the trial Court. 13. S....
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....rliest point of time did not reply the notice Ex.P5 alleging any extortion or forgery. Therefore, such defence in the later part of the proceedings is only an afterthought. iv) The complaint in PCR NO.41/2008 was only an after thought which was filed to evade the liability under Ex.P2. v) Before the trail Court and the first Appellate Court, the accused has not taken the defence of agreement being void. Such defence is not open for the first time in this petition. vi) Even assuming that there was a bar for alienation for 15 years that was only for transfer and not to enter into an agreement of sale/transfer Therefore, the said defence deserves no merit. vii) Even assuming that the agreement was void, since the receipt of 24 lakhs was proved, Section 65 of the Indian Contract Act bars the accused to make unjust enrichment. 16. In support of his arguments, he relies upon the following judgments: i) APS Forex Services Pvt.Ltd vs. Shakti International Fashion Linkers and others (AIR 2020 SC 945) Regarding issuance of Cheque towards liability. 17. The complainant contended that the accused though agreed under Ex.P1 to sell his lands and received Rs. 24,00,000/- as advance sa....
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....im. The presumption is further substantiated by the letter of the postal authority. It was not the case of the accused that Ex.P8 was not issued by the postal authority. Even postal receipt was produced by the complainant. Therefore, the Courts below were justified in imputing the contents of notice to the accused. 23. When the notice containing such serious allegations and financial implications was issued, if the case of the complainant was false, no man of ordinary prudence sits back without contraverting those allegations by issuing a reply. 24. Regarding Ex.D1 to D5, there is no dispute that on the accused filing the complaint as per Ex.D1 before the Magistrate against the present complainant and others alleging that Ex.P2 and other documents were obtained under coercion, the matter was referred to jurisdictional police for investigation. It is also not disputed that the police filed 'B' summary report. 25. Though on contest, 'B' summary report was rejected and cognizance was taken in Ex. D1 against the complainant herein, admittedly the said proceedings were dismissed by the Magistrate in 2016. That order was not challenged all these years. Therefore, Court....