TaxTMI 
TaxTMI 
2020 (12) TMI 509
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....m of Understanding/Sale Agreement dated 21.12.2005 with Sri.A.S.S.Mudaliyar and Sri Kumaraswamy in respect of the immovable property bearing No.106, in Survey No.138/2, of Bilekanahalli Village, Begur Hobli, measuring East to West 80 feet and North to South 60 feet for sale consideration of Rs. 43,20,000/-. On the same day, the appellant entered into an agreement with Mr.Mohammed Fayaz for selling the said immovable property to any third party offer. On request of the accused, the appellant and Mr.Mohammed Fayaz asked the original owners to execute the Sale Deed in favour of the accused. Accordingly, the original owners executed the Sale Deed in favour of the accused in respect of the western portion of the said immovable property, measuring 40 ft. x 60 ft. and the respondents together issued three cheques. All the three cheques issued by the respondents came to be dishonoured. Thereafter, a legal notice came to be issued to the respondents. The respondents have neither replied to the legal notice nor paid the amount covered under the cheques. This made the complainant to institute a criminal case against the respondents in the trial Court in C.C.No.15317/2007, for the offence puni....
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....t there existed no legally enforceable debt in favour of the complainant as on the date of presentation of the cheque. Thus, the said judgment cannot be called as an erroneous judgment. 12. In support of his case, the complainant got himself examined as PW-1, who in his examination-in- chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. Stating that as a portion of the sale consideration of the western portion of the property bearing No.106, measuring 2,400 sq.ft., the accused had issued three cheques for Rs. 3 lakhs, Rs. 4 lakhs and Rs. 5 lakhs respectively, which were returned dishonoured when presented for realization, he has got produced those cheques at Exs.P-2 to P-4 and the Banker's endorsement at Exs.P-5 to P-8. Stating that he has also issued a legal notice demanding the cheque amount from the accused and the said notice was sent to the accused both under Registered Post Acknowledgment Due, as well under Certificate of Posting, he has produced and got marked copy of the legal notice at Ex.P-9, the postal receipts at Exs.P-10 and P-11, the Certificate of Posting at Ex.P-12 and two postal acknowledgements at Exs....
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.... and Sri Kumaraswamy, further entered into an Agreement to Sell dated 9.1.2006 with DW-4 Syed Ibrahim, DW-2 R.Prasad, one Smt.Lokamatha Seshadri, who is the wife of DW-3 and one Smt.Rahat Unnisa. Under the said agreement to sell, the purchasers agreed to purchase the property at a higher rate than what Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab had agreed to purchase it and in that regard, had also paid an advance sale consideration of Rs. 24 lakhs to the said Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab. It is the further evidence of DW-1 to DW-4 that, DW-4 Syed Ibrahim and Smt.Rahat Unnisa, the joint agreement holders since were not interested to purchase the property, it was DW-2 R.Prasad and Smt.Lokamatha Seshadri, the remaining two joint agreement holders, agreed to purchase the property under the agreement. However, by their enquiry, they came to know that A.S.S.Mudaliyar and Kumaraswamy, the alleged vendors, were not the original owners of the said property and they had no right, title in the property. The original owners of the said property were one Sri N.Bhumi Reddy and Sri Krishna Murthy. Therefore, the agreement holders - R.Prasad (DW-2) and his son Dinesh Prasad (DW-1....
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....nt has throughout remained an utter stranger and there was no transaction between the accused and the complainant. Therefore, the question of issuing three cheques under question to the said complainant never arises. He has also stated that, even as against Mohammed Fayaz and Haji Pyare Jan Sab also, there existed no legally enforceable debt since they have cheated him and attempted to make a wrongful gain. In his support, DW-1 has also produced a certified copy of the Sale Deed dated 1.6.1984 at Ex.D-3, the certified copies of the two Sale Deeds both dated 7.6.2002 at Exs.D-4 and D-5 respectively to show the flow of title with respect to the subject matter property. He has also got produced a certified copy of the private complaint said to have been filed by one Smt.Madhavi against the original vendors Sri N.Bhumi Reddy and Sri Krishna Murthy and their General Power of Attorney holder Sri A.S.S.Mudaliyar and one Smt.Lokamatha Seshadri, who is the wife of DW-3, at Ex.D-6. Stating that said Smt.Lokamatha Seshadri had filed a civil suit against the said Smt.Madhavi for the relief of injunction, the witness has also produced the certified copy of the plaint in O.S.No.3940/2006, at Ex....
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....Sri N.Bhumi Reddy and Sri Krishna Murthy have not executed any agreement in favour of Sri A.S.S.Mudaliyar, but, they had executed only a General Power of Attorney in favour of said Sri A.S.S.Mudaliyar. This statement of PW-1 falsifies his contention taken in the complaint, as well in his examination-in-chief that Sri A.S.S.Mudaliyar and Sri Krishna Murthy, as the owners of the property, had agreed to sell that property to him under an agreement. Therefore, when the alleged subsequent vendor i.e., the complainant himself did not have a valid Sale Agreement in his favour, it cannot be believed that he subsequently had entered into one more agreement with Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab and also with the complainant for the sale of the very same property. Added to the above, the complainant/PW-1 in his further cross-examination has also admitted a suggestion as true that, earlier with respect to site No.106, Sri A.S.S.Mudaliyar and Sri Krishna Murthy had executed an agreement in favour of Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab. He pleaded his ignorance that said Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab entered into an agreement to sell the same property to Smt.Rah....