- (1.) Respondents had faced trial in complaint filed by the applicant under Section 138 of Negotiable Instruments Act, 1881. Trial Court vide judgment dated 24.01.2013 ordered the acquittal of the respondents. Hence, the present application under Section 378 (4) of Code of Criminal Procedure, 1973 for leave to appeal against the judgment passed by the trial Court by the complainant-applicant. I have heard learned counsel for the applicant have gone through the record available on the file carefully.
(2.) In the present case, applicant had filed the complaint against the respondents on account of dishonour of cheque dated 05.01.2006 in the sum of Rs. 25,00,000/-. The case of the applicant is that when the cheque in question was presented for encashment, it was dishonoured with the remarks "account closed". As per the case of the complainant, the cheque had been issued to applicant by the respondents by way of compensation.
(3.) The trial Court while ordering the acquittal of the respondents has held as under:- "Once the presumption is raised u/s 139 of NI Act the burden of proof now shifts upon the accused to rebut the same. Let us now examine whether accused is liable to rebut the presumption. The contention of Ld. Counsel for accused is that the parties has arrived at a settlement regarding the transaction of bungalow No.7 and accused has paid the required amount as per settlement. For proving the same the accused has tendered oral as well as documentary evidence. Ex. D3 is the photocopy of cancellation deed and Ex.DA/1 is the certified copy of the same. The complainant during his cross examination admitted that Ex.D3 is the true copy of cancellation deed. The perusal of document Ex.D2 i.e. Joint application filed by parties in Pune court shows that both parties has arrived at settlement in point No.4 of Ex.D2 stating that the plaintiff in that case i.e. Complainant in present case will not take any step in the present case against accused upto 120 days from that day and after fulfillment of responsibility as per MOU withdraw the present case. In Ex.D2 parties has prayed the Hon'ble court of Pune to draw a compromise decree as per their compromise i.e. cancellation deed. The perusal of Ex.D3 which is the cancellation deed shows that as per the decree through court this cancellation deed will be valid only if new buyer of this bungalow Dr. Raj Ganacharya will pay loan of Standard Chartered Bank which was taken by Mr. Harpreet Singh Anand by 9th June 2007. This document further incorporates that upon the fulfillment of above terms the purchaser shall not be left with any right, title, interest of claimed relating to said property. The other document Ex.D4 i.e. MOU between parties on point No. P also contains similar provision and provides that after refunding the entire amount which was spent by complainant for the purpose of payment of stamp duty, registration charges and amount to be paid to financial institution there will be no due remains between the parties and even if some difference remains that shall be treated as liquidated charges not penalty. The statement of DW1 alongwith documents tendered by him Ex.DW1/A, Ex/DW1/2 to Ex.DW1/9 shows that the loan account of complainant in Standard Chartered Bank has been fully settled before 9th June 2007 as per terms of cancellation deed. The contention of Ld. Counsel for complainant that accused did not produce any attesting witness for proving Ex.D3 does not hold good ground because the complainant has himself admitted this document during his cross examination and acknowledged his signature on it. Thus, there is no doubt regarding the genuineness of documents Ex.D3. Thus, there is no hitch to say that accused has complied with terms of compromise as per Ex.D3. Now, the complainant in his evidence failed to point out any terms in document Ex.D4 as well as Ex.D3 which incorporates that the accused is liable to pay the compensation for delay in giving the possession of bungalow No.7. Moreover, the documents Ex.D3 and Ex.D4 collectively shows that the complainant has surrendered bungalow No.7 to accused in consideration of clearing his loan from Standard Chartered Bank and the amount which he has received during cancellation deed and nothing due is left from side of accused. The Ld. Counsel for accused has argued that after violation of terms of agreement by complainant they have filed criminal complaint against complainant. IN support of his contention he has produced Ex.DA/3 which is certified copy of summoning order of Ld. JMIC, Pune in which accused has been summoned. Ex.DA/4 is the certified copy of complaint filed by Dr. Raj Ganacharya against complainant. The contents of Ex.DA/4 fully corroborate the story of defence of accused. Ex.DA/5 is the certified copy of complaint filed by accused against complainant in Pune court. Though these documents have not much relevancy in the present case but no doubt they corroborate the defence of accused. Thus after considering the documents tendered by accused as well as statement of DW1 it can be concluded that accused has successfully proved that parties has entered into a compromise regarding the transaction of Bungalow NO.7 and accused has fulfilled each terms of that agreement. The complainant has failed to point any amount which is still outstanding from accused side. Thus, the accused is succeeded in rebutting the presumption raised in favour of complainant u/s 139 of NI Act and successfully proved his defence. On the other hand complainant is failed to falsify the evidence lead by accused. He has further failed to point out any terms in any document tendered by both the parties in which he is entitled to get any compensation amount for delay in getting possession of bungalow No. 7. Moreover, after considering the evidence of accused it is clear that bungalow No. 7 has never been delivered to complainant and they have themselves surrendered the possession of bungalow No.7 in favour of accused. So, there is no question of compensation for delay in getting possession".;