TaxTMI 
TaxTMI 
2021 (6) TMI 469
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..... 15,25,000/-, in which regard, Sale Agreement was entered into between them on 01.09.2007, whereunder, the complainant paid a sum of Rs. 5,20,000/- as an advance amount to the accused. It is also the case of the complainant that the accused had borrowed a loan of Rs. 13,50,000/- from the Canara Bank and was unable to repay the said loan, as such, at the request of the accused and her husband, he paid a sum of Rs. 4,70,000/- to them by way of cash to discharge the said loan raised by the accused. While availing the said loan, the accused and her husband entered into an Agreement dated 19.09.2008 and undertook to repay the same on or before 06.03.2009, however, the accused did not repay the loan amount. When the repayment was demanded, the accused issued a cheque to the complainant bearing No. 534292, dated 28.05.2009, drawn on ING Vysya Bank Ltd., Sadashivanagar Branch, Bengaluru, for a sum of Rs. 5,31,875/-, in favour of the complainant. When the said cheque was presented by the complainant for its realisation, the same came to be returned dishonoured with the Banker's shara as "funds insufficient". Thereafter, the complainant issued a legal notice to the accused demanding the....
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....to be the truth, however, the trial Court did not consider the same in its proper perspective. On the other hand, learned counsel for the respondent in his argument submitted that Ex. P-9 is not a Sale Agreement, but, it is a loan agreement, under which the accused has borrowed the cheque amount. The husband of the accused i.e., DW-2 also admits the execution of Ex. P-9. Admittedly, no steps are taken or initiated to recover the alleged blank cheque from the alleged custody of the complainant by the accused. Therefore, the loan amount with the agreed rate of interest Sessions Judge's Court have rightly held the accused guilty of the offence. 12. From the evidence of the parties led in the trial Court, as well the submissions made by the learned counsels in their arguments, the undisputed fact remains that the complainant, as well the accused were known to each other prior to the date of the alleged cheque at Ex. P-1. It is also not in dispute that there was transaction for the sale of an immovable property from the accused towards the complainant and the said transaction went through as agreed. However, the accused has seriously disputed the allegations made in the compla....
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....missory Note. 15. In the above circumstances, where both the accused and her husband as DW-1 and DW-2 admit sale of their immovable property to the complainant for a consideration of Rs. 15,25,000/- and contend that the alleged amount of Rs. 4,70,000/- documented in Ex. P-9 is not a separate loan given by the complainant, but, it was a part of the sale consideration which was payable to the Canara Bank towards the housing loan availed by the accused, the evidence of the complainant as PW-1 in that regard plays an important role. 16. PW-1 in his examination-in-chief has stated that Agreement of Sale for the purchase of an immovable property by him from the accused for a sum of Rs. 15,25,000/- was on 01.09.2007. He has also stated that a sum of Rs. 5,20,000/- was paid by him on the said date towards advance amount. Though no document in that regard is produced by him, however, the accused have also admitted the said agreement for sale of their immovable property to the complainant for a sum of Rs. 15,25,000/-. PW-1 has also stated that the accused had taken a housing loan from Canara bank, South End Circle Branch, Bengaluru, which is also an admitted fact since both DW-1 and....
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....tion was utilised by the accused as stated by none else than PW-1 himself, the accused should have retained with the remaining sum of Rs. 1,25,000/- with them. Therefore, the question of the accused availing another sum of Rs. 4,70,000/- from the complainant to clear the housing loan with the Canara Bank and other non-mentioned personal loans creates a doubt in it. 19. The complainant, who in his examination-in-chief, apart from stating that the loan in question was given and an agreement in that regard was entered into on 19.09.2008, has in his cross-examination stated that, he cannot say the date when the loan was given to the accused. Interestingly, he has specifically stated in his cross-examination that on the date when he gave a loan of Rs. 4,70,000/- to the accused, he neither collected any cheque from them nor obtained any agreement or other documents from them. This statement of the witness goes against his evidence in examination-in-chief that on giving a loan of Rs. 4,70,000/- in cash on 19.09.2008, they also entered into a loan agreement, which he has marked at Ex. P-9. 20. The complainant who in his complaint, as well in his examination-in-chief as PW-1 has state....
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....nd her husband approached him and stating that they would pay that amount together with interest, had issued a cheque for a sum of Rs. 5,31,875/-. He has stated that he has given the said agreement to his counsel. Interestingly, the said cheque is for Rs. 5,31,875/-. The cheque at Ex. P-1 is for the very same amount of Rs. 5,31,875/-, which means, even according to the complainant, the said cheque is towards the agreement dated 19.02.2008 and that agreement copy is with his advocate. If that is so, then the agreement at Ex. P-9, which is of a different date i.e., 19.09.2008, is a different agreement and totally a different transaction. That is also because, even according to the complainant (PW-1), he had entered into not less than three to four agreements with the accused and he has retained three agreements still with him. Therefore, the only inference that can be drawn is that the alleged cheque at Ex. P-1 is for a different transaction and under a different agreement, which according to PW-1, is for an agreement dated 19.02.2008, which falsifies his evidence in examination-in-chief that the cheque at Ex. P-1 was with respect to an agreement at Ex. P-9, which is dated 19.09.2008....