B Vasudeva Rao vs C Nagaraj

All the three appeals are preferred by the appellantcomplainant under Section 378(4) of Cr.P.C. who is the party in person, being aggrieved by

the judgment and order of acquittal dated 28.5.2016 passed by the Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.

Nos.35285/2014, 32951/2014 and 9658/2015 dismissing complaints filed for the offences punishable under Section 138 of Negotiable

Instruments Act. Challenging the judgment and order of acquittal of the respondent-accused and dismissing the complaints of the appellant-

complainant and also challenging the legality and correctness of the said order passed by the trial Court, the appellant is before this Court in the

above three appeals on the grounds as mentioned in appeal memorandum of all the appeals.

Heard the arguments of the appellant-party in person (complainant) in all the appeals and learned Counsel for the respondent-accused.

The appellant-party in person (complainant) in all the appeals submitted that the trial Court has wrongly acquitted the respondent-accused when

the signature and the issuance of cheques in all the three cases has been admitted by the respondent-accused. The appellant has also submitted that

even during the course of evidence, there was no denial of issuance of cheques and his signature on the cheques and there was agreement of sale

for the sale of land. The transaction was agreed for the total amount of Rs.1,34,75,000/-. Out of which, Rs.60,00,000/- was already paid on the

date of sale deed i.e., 27.1.2014 and the date on which the remaining amount shall be paid was also agreed and in that connection, the appellant-

complainant received the cheques. Subsequently, when the cheques were presented, they were dishonoured on the ground of payment stopped by

the drawer. Hence, the appellantcomplainant preferred three complaints before the trial Court and the trial Court, after full-fledged trial, has

acquitted the respondent-accused in all the three cases dismissing the complaints of the appellant herein. The learned Counsel for the appellant has

further submitted that the civil suit which is pending in the civil Court has no bearing in this matter. It is an independent remedy pursued under the

civil law. So far as the criminal law is concerned, once the respondent-accused admitted his signature on the cheques and the issuance of cheques,

the trial Court ought to have allowed the complaints and convicted the respondent-accused for the offence punishable under Section 138 of the

N.I. Act. Hence, the appellant submitted to allow the appeals setting aside the judgment and orders passed by the trial Court.

Per contra, learned Counsel for the respondentaccused in all the appeals, submitted that it is no doubt true that the transaction was settled for

the amount of Rs.1,34,75,000/-. Out of which, Rs.60,00,000/- was paid on the date of registration i.e., on 27.1.2014. Learned Counsel

submitted that the appellant herein gave an impression to the respondent-accused that he was the absolute owner of the schedule property and he

conducted the sale accordingly. But before making payment of the remaining amount, the respondentaccused came to know that the sisters and

brothers of the appellant-complainant have filed a suit seeking partition and separate possession of the legitimate share in the said property and the

respondent-accused was also arrayed as one of the defendants in the said suit. The suit was pending since 2009. Originally, the

respondentaccused was not a party in the said suit. But subsequently by filing an application for imlpleading, the respondent accused was

impleaded as defendant No.10 in the said suit. The respondent-accused received the Court notice on the said application on 23.9.2014. The

learned Counsel further made submission that the suit was pending on the file of the civil Court even earlier to the selling of the property by the

appellant-complainant in favour of the respondent-accused. In this connection, learned Counsel for the respondent draws the attention of this

Court to Section 52 of the T.P. Act that the transaction was hit by the principles of lis pendense. Before conducting sale of the property, the

appellantcomplainant herein has not at all obtained sanction of the concerned Court. Hence, the transaction was affected by Section 52 of the T.P.

Act. The learned Counsel submitted that when the respondent-accused received the Court summons in the suit arraying him as defendant No.10,

he cannot be insisted by the appellantcomplainant to pay the remaining amount. The learned Counsel submitted that in case it is held by the civil

Court that the sisters and brothers are also having a share in the property, it will affect the right and title and interest of the respondent-accused

who has purchased the property by paying the sale consideration of Rs.60,00,000/- and Rs.10,00,000/- as ordered by this Court. Hence, no

merit in these appeals and the same may be dismissed.

I have perused the grounds urged in the appeals memorandum in respect of all the three appeals and the impugned judgment and orders of

acquittal passed by the Court below in respect of all the matters.

Looking to the judgment and orders of acquittal, the trial Court has concentrated only on the suit filed by the brothers and sisters of the appellant

herein. Because of that reason, it has come to the conclusion in acquitting the respondent-accused observing that even though there is dishonour, it

is because of the valid reasons and as per the stop payment given to the bank, the instrument came to be dishonoured and it cannot be an offence

under Section 138 of the N.I. Act. But according to my opinion, the trial Court ought to have kept these three complaints pending till the decision

in the suit filed by the sisters and brothers of the appellant-complainant herein. Because all the three complaints have been dismissed by the trial

Court acquitting the respondent-accused and in the pending suit, ultimately, on the full fledged trial, if the suit filed by the sisters and brothers came

to be dismissed, the complainant who is appellant in this case, he cannot get back the amount because the complaints have been already dismissed.

When that is the situation, the learned trial judge ought to have considered these aspects of the matter and ought to have kept three complaints

pending till the decision in the suit filed by the brothers and sisters of the appellant herein. Therefore, it requires setting aside of the judgment and

orders of acquittal passed by the trial Court and remanding all three matters to the concerned trial Court.

Therefore, the criminal appeals are allowed. The impugned judgment and orders of acquittal passed by the trial Court in respect of all these

appeals are set aside and they are remanded back to the concerned Court with a direction to the said Court to keep the matters pending till the

decision in the said suit. After the final decision in the said suit, the concerned Court shall proceed with all the matters in accordance with law and it

shall give opportunity of hearing to both sides, if the parties want to lead further evidence in the matter, in addition to the evidence which is already

on the record. Thereafterwards, the concerned trial Court shall proceed to pronounce the judgment on merits and in accordance with law. After

disposal of the suit filed by the sisters and brothers and of the appellant herein and looking to the share fallen to the present appellant-complainant,

the remaining amount is to be adjusted.