The fraudulent concealment of material facts can lead to a miscarriage of justice and warrant a remand for fresh adjudication.

By Court.- Heard learned counsel for the appellant and learned A. P. P. for the O.P. State. No one appeared for the private O.P. No.2, even though, notice was issued to the said O.P., which has been validly served. The O.P. No. 2 has not even filed her appearance in this Court. As such learned counsel Shri Jai Shankar Tiwary, who had appeared for her at the time of Special Leave to Appeal, was asked whether- he would accept notice for O.P: No.2, who after consulting the client declined to accept the same.

2. The appellant complainant filed the complaint in the Court of the Chief Judicial Magistrate, Ranchi, being complaint case No. 2012 of 2007 in which the present O.P. No.2 was made an accused in the capacity of Director of M/s. Varun Santi Home Pvt. Ltd. It is stated in the complaint petition that the said Varun Santi Home Pvt. Ltd., had entered into a development agreement with the complainant and his six brothers, who had inherited the entire estate of their father late Rabhubansh Kumar Singh after his death, for construction of an apartment over the said flat. Pursuant thereto, Ram Raj Apartment was constructed by Varun Santi Home Pvt. Ltd. on the said plot and flat Nos. 302 and 304 came into the possession of the complainant and it was handed over to the complainant by the builder in the year 2004. Thereafter flat No. 304 of the said apartment was sold by the complainant through the accused. Subsequently, the complainant again requested the builder through its Director, the O.P. No. 2, to sell his flat No. 302 as well, to which the builder agreed and after some time, the complainant was informed that one Mr. R.K. Sinha was interested in purchasing the flat. The builder also informed the complainant that the said Mr. Sinha had advanced the consideration amount of Rs. 12 lakhs and accordingly, sent three cheques to the complainant bearing cheque Nos. 274755. 274756 and 274757, each for the amount of Rs. 4.00.000/-and dated 28.9.2007, which were issued by the O.P. No.2. When the said cheques were deposited by the complainant in the Bank they were dishonoured by the Bank due to insufficient fund in the account of the drawer and after completing of the necessary legal requirements under the law, the said complaint was filed as the payment of the amount was not made to the complainant.

3. In course of trial, the evidences were adduced by both the sides and ultimately, the trail ended in the judgment of acquittal, which is impugned in this appeal. From the judgment passed by the Court below, it appears that so far as the legal requirements about the presentation of the cheques in the Bank within the prescribed time the information of the cheques being dishonoured by the Bank due to insufficient fund in the account of the drawer and notice of demand etc. are concerned they were found to be in order. However: the accused was acquitted as the Court below found that the ownership of I he property was never transferred and the title ownership and the possession of the said flat remained with the complainant himself. Accordingly, by the impugned judgment dated 6.8.2010, the Trial Court held that the complainant had not been able to prove his case and the necessary ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act were not satisfied. Accordingly, the accused (O.P. No. 2 herein) was not found guilty and was acquitted.

4. In the present appeal, it has been brought on record in that the said builder had actually, without the knowledge and consent of the complainant, already sold the property to a 3rd party viz. Shri Akhileshwar Prasad and Smt. Shanti Devi, through a registered sale-deed dated 28.12.2007, but this fact was never brought to the knowledge of the Court below and even the complainant was not informed ,about the said sale. It has been stated in the supplementary affidavit through which the copy of the sale-deed has been brought on record that the O.P. No. 2 had cheated the appellant