TaxTMI 
TaxTMI 
2022 (11) TMI 1373
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....lant/complainant that there was Memo of Understanding (MOU) dated 19th November 2009 executed between the appellant and respondent No. 1 wherein the appellant agreed to buy property bearing Survey No. 32/1 of village Colvale for a consideration of Rs. 7,50,000/- from the respondent. Since the respondent failed to perform his part, he issued a cheque for an amount of Rs. 15,00,000/- towards breach of contract and damages. On presentation of the said cheque with the bankers, it was returned with an endorsement "Opening balance insufficient". A demand notice dated 19th February 2021 was issued which was replied to by the respondent vide letter dated 7th March 2019 refuting the allegations in the notice. Complaint was filed under Section 138 of the Negotiable Instrument Act before the learned Magistrate at Mapusa. Process was issued against the respondent who appear and contest the matter. The appellant examined himself. Respondent No. 1 examined himself and one witness. The learned Magistrate vide impugned judgment and order dated 16th December 2016 dismissed the complaint and acquitted the respondent. 5. The learned Counsel for the appellant submitted that the impugned judgment ....
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....gotiable Instrument Act? ii) Whether complaint is within limitation? 8. In the complaint filed under Section 138 of the Negotiable Instrument Act, there are clear averments that the appellant and respondent were known to each other and that the respondent is in the business of selling properties in the State of Goa. The appellant was interested in purchasing some property whereas the respondent was holding Power of Attorney for Ms. Iris D'Souza and Mr. Walter Diniz Mendonca with respect to immovable property having a residential house bearing House No. 15/3, together with larger property known as "Tolencho Sorvo" or "St. Roque Waddo" admeasuring 675 sq. mtrs. bearing Survey No. 32/1 of village Colvale, Bardez, Goa. The respondent offered the said property to the appellant for an amount of Rs. 7,50,000/-. The respondent also represented that the said property is having clear and marketable title and there is no dispute of any nature. Since the appellant liked the said property and on the basis of the representations made by the respondent, he agreed to purchase it for Rs. 7,50,000/-. Accordingly, a MOU dated 19th November 2009 was executed between the appellant and....
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....agistrate framed six points as observed in paragraph No. 6 of the impugned judgment and order. All these six points are answered in negative. 13. At this stage, it is required to observe that Chapter XVII of Code of Criminal Procedure 1973 ('CrPC' for short) deals with the judgment. Section 354 of CrPC mandate that the judgment contained point or points for determination, decisions thereon and the reasons for such decision. The whole purpose of framing of points is to understand the case put forth, the law applicable to the fact and the decision against it. 14. In the matters arising out of Section 138 of the Negotiable Instrument Act, framing of point while delivering judgment assumes much importance as first of all the Magistrate has to consider ingredients of Sections138 r/w. 139 of the Negotiable Instrument Act. Similarly, the Magistrate has to keep it in mind provision of Section 140 of the Negotiable Instrument Act which says that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section. ....
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....hey have a sufficient, clear and marketable title to the said property and have agreed towards the sale of the said property which is clearly described in the schedule below for Rs. 7,50,000/- (Rupees Seven Lakh Fifty Thousand only)" 18. The MOU then proceeds further and record as under in paragraphs No. 1 to 9.: 1. That Party No. 1 has agreed to sell the said property to Party No. 2 for fair market value price of Rs. 7,50,000/- (Seven Lakhs Fifty thousand only). 2. That the party No. 2 has advanced to Party NO. 1 Rs. 5,00,000/(Rupees Five Lakhs) towards this agreement for sale. Out of which is Rs. 2,50,000/- (Rupees Two lakhs fifty thousand only) issued through ING VYSYA., PANJIM BRANCH, CHEQUE NO. 349732, dated 9/05/08 and Rs. 2,50,000/- (Rupees Two Lakhs fifty thousand only) by way of cash which is duly acknowledged by Party No. 1 of sum of having received the said sum of Rupees 5,00,000(Rupees Five Lakhs only). 3. That the balance sum of Rs. 2,50,000/- (Rupees Two lakhs fifty thousand Only) will be paid at the time of execution of sale deed. 4. That the Party No. 1 has represented to Party No 2 that they have no lien, and encumbrances or l....
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.... purchase the said property, respondent No. 1 issued a cheque of Rs. 15,00,000/- which includes the costs and damages for non-performance of the said agreement. Thus, admittedly the amount which the appellant paid to respondent No. 1 as per the MOU was Rs. 5,00,000/-. Therefore, it was for the appellant to establish as to how additional amount of Rs. 10,00,000/- is calculated towards the so called damages/compensation and whether the respondent no. 1 acknowledged that he is liable to pay such amount which include the initial payment of Rs. 5,00,000/- together with additional amount of Rs. 10,00,000/- towards damages and compensation. 21. MOU produced at Exh-8 is totally silent about the eventuality of non-performance of the said agreement and what would be method of refund of the advance paid and whether the appellant would be entitled to claim damages/compensation. Returning back to the complaint filed under Section 138 of the Negotiable Instrument Act, there are no averments or calculations disclosed therein as to how the figure of Rs. 15,00,000/- was arrived at when amount paid by the appellant was only Rs. 5,00,000/-. Averment in paragraph Nos. 12 and 13 of the compla....
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....ned in the cheque. It is a specific case that such a cheque was issued as security at the time of executing MOU in the year 2009 and the same has been misused. Whereas specific statement that such cheque was never issued in discharge of any legally enforceable liability or debt. Thus respondent No. 1 made his defence clear at the time of sending reply i.e. before filing the complaint under Section 138 of Negotiable Instrument Act. In such circumstances, it was incumbent upon the appellant to come up with the appropriate averments in the complaint by showing as to how the amount of Rs. 15,00,000/- is arrived at when the MOU only refers to payment of Rs. 5,00,000/- as advance. The only document which appellant subsequently relied upon is the so called receipt, the contents of which reads thus: "Given to Mr. Tanveer Khatib, a sum of Rs. 15,00,000/- by cheque No. 513842, drawn on Bank of Baroda, Mapusa Branch, towards security deposit against the Agreement for sale of the property (House plot) bearing Survey No. 32, Sub-Division 1 of Colvale Village admeasuring about 700m2, situated at Colvale, Bardez, Goa. In the event that on the stipulated dated being 16-5-09 I am unable ....
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....clear from the above observation that the so called receipt at Exhibit-9 is much prior to the MOU dated 19th November 2009 and, therefore, in absence of any reference of such receipt in the MOU, contents of such letter cannot be considered as terms and conditions executed between the parties specifically when such terms and conditions, if any, were modified by the MOU dated 19th November 2009. 27. Respondent No. 1 stepped in the witness box and filed his affidavit-in-evidence in support of his defence. He has been examined at length. Testimony of respondent no. 1 is not at all shaken in the cross-examination except the fact that he was unable to produce clear title to the property which he agreed to sell to the appellant. That apart, evidence of respondent No. 1 clearly goes to show that he received only Rs. 5,00,000/- towards advance for sale of such property. In cross-examination of respondent No. 1/Dw1, no suggestion was put to him that the cheque amount includes damages/compensation to the tune of Rs. 10,00,000/- over and above Rs. 5,00,000/- paid as advance. Even the receipt at Exh.-9 nowhere mentioned that the amount of Rs. 15,00,000/- is legally due to the appellant i....
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....ion under Section 139 of the Negotiable Instrument Act could be rebutted by the cogent and convincing evidence though on preponderance of probabilities. Such observations are in fact support the arguments and contentions raised by respondent No. 1 in the present matter. 32. In the case of K.N. Beena (supra), the Supreme Court relied upon the case of Hitel Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16 and observed that presumption could be rebutted or discharged by proving contrary. Mere denial or rebuttal in reply to the legal notice is not enough. Applying the same principle to the matter in hand, respondent No. 1 stepped into the witness box and led evidence which is sufficient enough to prove contrary and to rebut the presumption and this again support the case of respondent No. 1. 33. In the case of Tar Mohomad Haji Abdul Rehman, APS Forex Services Pvt. Ltd., Bir Singh and Bharthi Bhanudas Gaonkar (supra), proposition is same that the presumption under Section 139 of the Negotiable Instrument Act is a rebuttable presumption and the accused is entitled to rebut it by showing preponderance of probability either through the material placed by the complainant and his cross....
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....uch cheque. Therefore, answering the point No. 2 in negative is clearly required to be considered as perverse as evidence suggest otherwise. 40. The point No. 3 which reads thus: "Whether the complainant proves that such cheque was dishonest (to be read as dishonoured) for the reason "opening balance sufficient"? Interestingly the learned Magistrate answered this point also in negative though the memo of return of cheque produced at Exh-6 by the appellant from Bank of Baroda, Panaji, shows reason of return of cheque as "opening balance insufficient". Thus, answering this point No. 3 in negative is against evidence on record and therefore needs to be considered as perverse. 41. Point No. 4 reads thus: "Whether the complaint proves that the demand notice was sent within the prescribed period? Surprisingly, this point is also answered in negative. The record shows that the appellant issued legal notice dated 19th February 2011 addressed to respondent No. 1 which is produced at Exhibit-7 (Colly). This notice was sent to two different addresses of the respondent. The acknowledgment card produced at Exhibit-7 (Colly) shows that such notice was received by re....
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....o such argument which was also canvassed by the learned Counsel Ms. Collasso while arguing the present appeal. Relevant dates are necessary to find out whether the complaint under Section 138 of the Negotiable Instrument Act was filed within limitation. The dates which are relevant are as under: 1. Cheque is dated 7th February 2011. 2. Cheque was returned by Bank of Baroda on 8th February 2011 3. Demand notice was issued on 19th February 2011 4. Demand notice was received by respondent No. 1 on 21st February 2011 5. The period of 15 days from the date of receipt of demand notice expired on 7th March 2011. 6. The period of one month for filing a complaint expired on 6th April 2011. 7. The complaint was filed before the learned Magistrate on 8th April 2011. 48. Section 142 of the Negotiable Instrument Act reads thus: 142. Cognizance of offences [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be....
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....he present matter, admittedly respondent No. 1 received demand notice on 21st February 2011. Thus, he was supposed to make payment of the amount mentioned in the cheque within 15 days of the receipt of the said notice. Such period expired on 7th March 2011. 52. The complaint is required to be filed in writing within one month of the date on which cause of action arises. Thus, the cause of action accrued to the appellant on expiry of 15 days from the date of receipt of notice i.e. on 7th March 2011. Thus, he was required to file the complaint in writing "within one month from 7th March 2011". Admittedly, the complaint was filed on 8th April 2011 i.e. beyond the period of one month from the date of cause of action. Perusal of record and proceedings show that the complaint was presented on 8th March 2011 and it was registered on the same day. Neither the Registry at the office of learned Magistrate nor the learned Magistrate noticed the above aspect and did not raise any objection at that time. Similarly, the appellant stepped into the witness box by filing an affidavit in verification at exhibit-4 and producing necessary documents. However, the complaint as well as the affidavit-i....