IMPORTANT POINT
It beyond comprehension of common prudent man that respondent paid Rs.6.25 lakhs and accepted excuse of appellant that concerned Cheque kept in bank-locker, which she would return after sometime.

Servesh Kumar Gupta, J.—Appellant/complainant Smt. Vijay Laxmi and the accused/respondent Ajay Singh Rana are basically the residents of District Tehri Garhwal. Some immovable land, measuring 30 square meters, was allotted to the appellant by the Tehri Dam Rehabilitation Authority. Appellant erected the ground, first and second floors on that land. It appears that the first and second floors erected upon that 30 square meters land was covered with the total area of 186 (93+93) square meters, as has been mentioned in the agreement to sale dated 15.7.2009. The respondent/accused purchased the same for the actual total price of Rs.24.25 lakhs. This consideration was paid by the accused/respondent to the appellant by way of three post-dated cheques drawn by the respondent from his banker. First Cheque dated 30.7.2009 was for the value of Rs.7.00 lakhs; second Cheque dated 3.8.2009 was for the value of Rs.11.00 lakhs whereas the third Cheque dated 30.10.2009 was worth Rs.6.25 lakhs.

2. Unusually, the sale deed got executed just on the next date i.e. 16.7.2009 but in order to avoid some stamp duty and taxes, the total sale consideration was disclosed to be Rs.11.00 lakhs. This sum was got by the appellant by way of Cheque dated 3.8.2009. So, on an apparent look, the transaction was, thus, completed. The fact remains that the Cheque dated 30.7.2009, which was for the value of Rs.7.00 lakhs, was returned by the appellant to the purchaser Ajay Singh Rana, and in lieu thereof, appellant received Rs.7.00 lakh in cash. This fact about receiving the cash and returning that cheque was brought into writing.

3. The dispute arose when the vendor/appellant asked about Rs.6.25 lakhs in cash and the respondent, as he claims, gave this amount to the appellant but the latter did not return the Cheque dated 30.10.2009 to the purchaser. Appellant has averred that in fact, this amount of Rs.6.25 lakhs was never given to her by the respondent. When, she submitted this Cheque in the bank for encashment, it was dishonoured on 4.11.2009, for the reason of insufficiency of funds in the account of the respondent/purchaser.

4. On 11.11.2009, the notice was issued to the respondent, as envisaged under Section 138 of the Negotiable Instruments Act (hereinafter will be referred to as ‘the Act’) and the fact of receiving such notice is not in dispute.

5. But, instead of receiving the notice, the envelope, containing two blank papers, was accepted by the respondent. The response was made on dated 20.11.2009.

6. Respondent requested the appellant to deposit the Cheque, in question, again in the Bank, and in the meanwhile, he would manage the sufficiency of the funds in his account. On such presentation, the said Cheque was again dishonoured by the bank on 8.12.2009 but for a different reason, i.e. the bank was asked to stop the payment.

7. So, the bank returned the dishonoured Cheque to the appellant on 15.12.2009. On 16.12.2009, she issued second notice to the respondent, which was replied on 30.12.2009 with the averments that Rs.6.25 lakhs had already been given to her in cash in front of one Mr. Uttam Singh, while she kept on making the assurance for returning of the Cheque on one pretext or the other, and ultimately returned the same, and it is this Cheque, which is being misused by the appellant for initiating the instant litigation under the Act.

8. There is yet another aspect of this entire episode that the appellant made a complaint to the Collector concerned to the effect that the sale deed has been executed in far less price than the Government rate prevailing in the area. So, the notice was issued from the concerned Officer and the valuation of the sold property was Rs.24.25 lakhs. Thus, the remaining amount of the stamp duty, which was exigible on the sale deed, was recovered from the respondent.

9. Learned counsel for the respondent has based his arguments that in any case, this sum of Rs.6.25 lakh, the disputed amount, was not a legally enfor