Jitender Kumar v. Sunil Nagar

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH SR. No.245 CRM-A-920-2023 (O&M) Decided on:06.08.2024 Jitender Kumar ...Applicant

Versus

Sunil Nagar

...Respondent

CORAM:

HON'BLE MR. JUSTICE N.S. SHEKHAWAT

Present:

Mr. Parveen Gaur, Advocate for the applicant.

N.S. SHEKHAWAT, J.

CRM-28104-2023 1.

  

      

      

    2.

For the reasons mentioned in the application, the same is allowed. The delay of 49 days in filing the appeal is condoned. 1.

The applicant has filed the present application under Section 378(4) of the Code of Criminal Procedure with a prayer to grant special leave to appeal against the impugned judgment dated 16.03.2023 passed by the Court of Judicial Magistrate 1st Class, Faridabad, whereby the complaint under Section 138 of the Negotiable Instrument Act, 1881 (for short 'NI Act'), filed by the present applicant/complainant, was ordered to be dismissed and accused/respondent was acquitted of the charge. 2.

As per the allegations levelled by the applicant/complainant in the complaint, respondent/accused had entered into an agreement to sell dated 08.01.2018 with the applicant to purchase a plot measuring 200 sq

yards, forming part of the land comprised in Khewat No. 241, Khatoni No.294, Rectangle No.73, Killa No.3/3/2(1 Kanal 13 Marla), 3/4 (1 Kanal 0 Marla), situated at village Mauza Bhupani, Sub Tehsil Tigaon, District Faridabad. The applicant was the owner of the said plot by virtue of sale deed bearing No.13619 dated 23.10.2012 and mutation No.4573. It was further stated in the complaint that out of total sale consideration of Rs.12,00,000/, the respondent had paid only a sum of Rs.2,00,000/- on 10.01.2018 and the cheque was duly encashed by the applicant. Thereafter, admitting his legal liability to make the payment of balance sale consideration of Rs.10,00,000/-, the respondent had issued a cheque in question bearing No. 070878 dated 09.05.018 for a sum of Rs.10,00,000/- in favour of the applicant.

The applicant presented the said cheque with his banker and the said cheque was dishonoured with the remarks "funds insufficient". Thereafter, the applicant got a legal notice issued to the respondent, still the respondent did not make any payment and after completing the formalities, the complainant filed a complaint under Section 138 of the NI Act against the respondent.

3.

In the preliminary evidence, the applicant/complainant Jitender Kumar appeared before the trial Court as CW-1 and the following documents were exhibited:- Ex.C1:

Cheque in question Ex.C2:

Cheque return memo Ex.C3:

Legal notice Ex.C4:

Postal receipt Ex.C5:

Sale deed bearing No.13619 dated 23.10.2012 Ex.C6:

Mutation bearing No.4573 Ex.C7:

Agreement to sell dated 08.01.2018 Ex.C8:

Payment receipt

4.

Thereafter the respondent was summoned under Section 138 of the NI Act and after his appearance, a notice of accusation was served on him. After summoning, the applicant was cross-examined by the respondent and the evidence of the applicant was concluded. 5.

In his defence, the respondent examined himself as DW-1. Rajinder Sharma was examined as DW-2 and following document was exhibited:- Ex.D1:

Letter issued by the bank to the accused regarding "stop payment" of the cheque in question.

6.

Learned counsel for the applicant vehemently argued that the cheque amounting to Rs.10,00,000/- dated 09.05.2018 was issued by the respondent in order to discharge his liability and the same was dishonoured on the ground of "funds insufficient". Even after issuance of legal notice, the respondent had failed to make payment of the said cheque. Further the respondent had not disputed his signature on the cheque in question and even the liability was admitted in the shape of an agreement to sell, which was executed by the respondent himself. Thus, the impugned judgment is legally unsustainable.

7.

I have heard learned counsel for the applicant and perused the record carefully.

8.

In the present case, the main claim of the applicant rests on the execution of an agreement to sell Ex.C7, wherein, it has been stated by the complainant that he was in possession of the plot in question and the possession had been handed over to the respondent. However when the applicant appeared for his cross-examination, he categorically admitted that he had never been in possession of the plot in question. Even he had not

filed any complaint or suit for possession against the previous owner for the possession of the plot. He also admitted that in pursuance of the agreement to sell, he had not handed over the possession of the said plot to the respondent. Thus, there was sufficient evidence to show that the applicant had failed to hand over the possession to the respondent. It was further admitted that the witness of the agreement to sell, namely, Abhey Singh had told him not to present the said cheque with the bank for encashment, still he presented the cheque with his banker. Thus, neither the possession of the suit property was handed over to the respondent nor any sale deed was executed.

Apart from that, the respondent had examined Rajinder Sharma as DW-2, who is an independent witness and he stated that the agreement to sell was executed between the parties with his mediation and he had also signed the agreement to sell Ex.C7. It was also agreed between the parties that the possession shall be handed over by the respondent to the applicant, but the possession was never handed over to the applicant and he was bound to claim as above.

 



   

     
 

     

     



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11.

Keeping in view the above referred discussion and the law laid down by the Hon'ble Supreme Court, it can be safely concluded that the impugned judgment by the learned trial Court is based on sound reasons and there does not seem to be any illegality or perversity in the impugned judgment. Accordingly, the present application for grant of special leave to appeal is ordered to be dismissed, being devoid of any merits. Pending application(s), if any, shall also stand disposed off, accordingly. 06.08.2024 (N.S.SHEKHAWAT) mks JUDGE Whether Speaking/Reasoned: YES / NO Whether Reportable:

YES / NO