J U D G M E N T

In this appeal filed under Section 378 of Cr.P.C., complainant is before this Court challenging the acquittal of the accused for the offence punishable under Section

138 of the N.I.Act.

2. For the sake of convenience the parties are referred to by their rank before the trial Court.

3. It is the case of the complainant that accused No.1 is a company registered under the Companies Act. Accused No.2 is the Chairman and Managing Director and accused No.3 is the Director of accused No.1-Company and they are responsible for the day to day activities and affairs of it. Accused are involved in business of real estate for the past four years as per the information given by them and they are doing extremely good work and earned good will within a short period.

3.1 Being impressed by such representation made by the accused, on 01.02.2014, complainant invested a sum of Rs.1 Crore with accused No.1-Company on an assurance of a return of 18% p.a. on the principal amount. A memorandum of understanding, evidencing in the transaction was executed by accused No.1 in favour of complainant on 01.02.2014. As per the same, accused promised payment of Rs.1,00,000/- per month and Rs.3,00,000/- every six months. Complainant was given liberty to withdraw the entire investment by giving 30 days oral notice.

3.2 On the same day i.e., 01.02.2014, complainant and accused have entered into an agreement of sale, by which accused agreed to sell complainant a three bedroom apartment with super built up area of 1981.88 sq.ft i.e. apartment No.FF1 (fourth floor) in the apartment complex known as ‘Srikrishna Springs’, which was under construction on Joint Development Agreement with the land owners for total consideration of Rs.2.5 Crores and Rs.1 Crore invested by the complainant was to be treated as advance sale consideration. Accused agreed to complete the construction within 24 months, failing which, if no further time is extended by mutual consent, accused - Company shall repay the complainant advance consideration of Rs.1 Crore with interest at 18% p.a.

3.3 Inspite of lapse of considerable time, accused did not honour any of the terms of the memorandum of understanding and agreement of sale. Despite several request by the complainant, accused-Company did not show any progress in the construction of the apartment. They also stopped responding to the repeated telephonic calls and text messages made by the complainant. Later the telephone contact numbers provided by the accused were either switched off or not reachable. Alarmed by the same, complainant, with a sense of insecurity invoked clause 6 of the memorandum of understanding and gave

30 days advance notice to repay the principal amount along with the accrued interest. On the oral assurance given by accused No.2, complainant waited for 6 months. After not getting any response from the accused, he once again issued two more letters dated 21.03.2016 and 22.03.2016 with a request to return the money along with interest.

3.4 At the time of executing memorandum of understanding and agreement of sale, accused persons had issued a cheque for Rs.1 Crore with a direction to present the same for encashment in case of default committed by them. After receipt of second notice dated 21.03.2016, accused persons orally intimated the complainant to present the cheque for encashment after 20.04.2016. Accordingly, complainant presented the same on 22.04.2016. However, the same was returned dishonoured with endorsement "funds insufficient". In view of the same, complainant got issued a legal notice dated 11.05.2016. It is duly served on the accused sent through RPAD and also courier. Despite due service of notice, accused have neither complied with it nor sent any reply. Therefore, without any alternative the complainant is constrained to file the complaint.

4. After due service of summons, accused appeared through counsel and contested the matter.

They pleaded not guilty and claimed trial.

5. In support of his case,