TaxTMI 
TaxTMI 
2021 (4) TMI 1389
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....e land bearing Sy.No.114 of Arekere Village or that he can secure the same from the persons to whom the said land belongs to the complainant-Company. The representations and sweet talks of the accused made the complainant-Company to part into the hands of the accused a sum of Rs. 10 Crores as advance amount for the purpose of securing the land required by the complainant-Company. The payment of Rs. 10 Crores was made by the complainant-Company to the accused through two crossed account payee cheques. These two cheques came to be drawn in favour of the accused on the Canara Bank, Industrial Financial Branch, Richmond Circle, Bengaluru. The accused also duly acknowledged the receipt of the payment for a sum of Rs. 10 Crores made in the manner stated above. The payment of the sum of Rs. 10 Crores was made as an advance amount to the hands of the accused. On the strength of the representations made by the accused, complainant-Company learnt from the discrete enquiries made by it that no such land bearing Sy.No.114 of Arekere Village exists, let alone, in the name of the accused or in the name of anyone else and that by an act of deceit, the accused had made the complainant-Company to p....
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.... property was not the property of either the respondent or any other person to whom he could trace his right to the said property and the said land has been classified as a tank area by the State Revenue Authority and for this reason that the accused has chosen to return the amount of Rs. 10 Crores. Inspite of the same, learned Magistrate has given the finding against the complainant and in favour of the accused that the dispute between the parties to the case is of civil in nature and that the complainant already approached the competent Civil Court. The said reasoning assigned by the learned Magistrate has seriously resulted in miscarriage of justice. Learned Magistrate also failed to take note of the fact that the fraud played by the accused upon the complainant is writ large in the records and has committed an error by improper appreciation of evidence. 5. Learned counsel also vehemently contend that it is not in dispute that the cheques are encashed in terms of Ex.P4 and P6 and that the property which he intend to secure in favour of the complainant is tank bund area and the property belongs to the Government. Learned counsel also would submit that the suit in O.S.No.7502/2....
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....y way of security and not towards any amount due to the complainant in share transactions was acceptable as probable. The said cheque could not be said to have been issued in discharge of debt. Hence, the same would not come within the purview of Section 138 of NI Act. 10. Learned counsel relied upon the judgment of the Apex Court in the case of KUMAR EXPORTS v. SHARMA CARPETS reported in (2009) 2 SCC 513, wherein the Apex Court held that the Court has to accept the valid proof that cheques were not issued by accused in discharge of any debt or liability to the complainant. 11. In reply to the arguments of the learned counsel for the respondent, learned counsel for the appellant would submit that the judgments relied upon by the respondent are not applicable to the case on hand as in the case on hand, there is no contract between the parties. The amount was advanced to the accused to secure the lands and the accused agreed to secure the lands not belong to any private individual or to the accused and the same is the tank area belongs to the Government. Hence, he had agreed to return the money. When once he had agreed to return the money and issued the cheques, he ought to hav....
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....filed and decreed. The complainant admitted that those two cheques were given for security and hence, the case does not attracts the provisions under Section 138 of NI Act since the dispute between the parties is of civil in nature. 15. Having considered the case of the complainant as well as the accused and also having perused the principles laid down in the judgments referred supra by the learned counsel appearing for the respondent and so also the factual aspects of the case in hand, along with the evidence available on record, the accused not disputed the fact that he has received the amount of Rs. 10 Crores. The only contention of the accused is that the subject matter of those two cheques were given as security, but not issued the same towards debt or liability. It is also not in dispute that there was an understanding between the complainant and the accused for securing the land and in pursuance of the said understanding and oral talks between the parties, the amount was given by way of cheques. 16. In order to re-appreciate the material on record, it is appropriate to consider the evidence of the witnesses available on record. The complainant examined one witness and ....
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.... respect of transferring of the documents on account of death. It is suggested that Ex.P8 is created and produced and the same was denied. He admits that 4 RTC extracts are marked as Exs.P17 to P20. He also admits that Ex.P17 is the Xerox copy. He admits that Exs.P17 to 19 are pertaining to him, but Ex.P20 not belongs to him. He admits that in column No.9 of Exs.P17 to P19, it is shown as "kere" (pond). He also admits that in column No.12/2 also, the same is mentioned as Government pond. He also admits that in column No.10 of Exs.P.17 to 19, the same is mentioned as pond vide order dated 13.11.1981. He admits that Ex.D.9-the RTC are pertaining to the period from 1970 to 1973. It is elicited that he did not enquire as to whether the RTCs in respect of Sy.No.34 from the year 1973 to 2004 and from the year 2004 till then, are available or not and he would verify and report the same before the Court. He also does not know what is the total extent of the land in Sy.No.34. He also cannot tell on what date, he has collected Ex.D.9. It is suggested that Ex.D9 is created and produced and the same was denied. He also admits that in the Government document, the same is mentioned as Government....
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....e of the ingredients of Sections 138 and 142 of the NI Act in order to come to the conclusion that the dispute between the parties is of civil in nature. Hence, the very conclusion of the learned Magistrate that dispute between the parties is of civil nature is erroneous. It is also important to note that when the cheques were issued and the same was dishonoured, the learned Magistrate ought to have invoked the presumption under Section 139 of the NI Act. The accused also not rebutted the presumption under Section 139 of the NI Act. Under the circumstances, the very approach of the learned Magistrate that the dispute between the parties is of civil dispute is erroneous and ought to have convicted the accused for the offence punishable under Section 138 of the NI Act. When the ingredients of the offence under Section 138 of NI is complied, the complainant also initiated the suit and the same has been decreed and an appeal is pending before this Court, both the proceeding are independent proceedings. The very conclusion of the learned Magistrate that cheques were issued for security is also erroneous. Without any material, the learned Magistrate has come to the conclusion that the ch....