ORDER

This petition has been filed challenging the proceedings initiated under Section 138 of the Negotiable Instruments Act, by the respondent before the Court below in CC No.7930 of 2018.

2. The respondent has filed a complaint under Section 138 of the Negotiable Instruments Act, against the petitioner on the ground that the petitioner had borrowed a sum of Rs.3,00,000/- towards a business transaction and towards the repayment of the same, a cheque was issued by the petitioner and when the same was presented, it was dishonoured with an endorsement “Account closed”.

3. The learned counsel for the petitioner submitted that there was no business transaction between the parties. The petitioner had purchased a property from the respondent. It was found that there was a discrepancy in the extent of property as cited in the patta as against the one found in title deed. That apart, the pathway access to the property was also blocked due to some encroachment made by third parties. On this ground, the petitioner had with held a sum of Rs.3,00,000/- out of the total sale consideration. The cheque was issued to the respondent as a security, in order to ensure that the respondent will clear the obstacles and thereafter the petitioner will pay the balance sale consideration of Rs.3,00,000/-.

4. The learned counsel submitted that concealing this fact, the respondent has filed a complaint before the Court below, as if there was a business transaction.

5. This Court made a query to the learned counsel for the petitioner, as to how, this Court can enter into such a factual dispute between the parties. The learned counsel for the petitioner brought to the notice of this Court the counter affidavit filed by the respondent in WP No.38120 of 2016. This Writ Petition was filed by the petitioner for a direction to the Tahsildar to grant Patta in the name of the petitioner. A counter was filed by the respondent in this Writ Petition and the relevant portions in the counter affidavit are extracted hereunder.

“4. I submit that the Agreement for Sale with the petitioner was entered into on 21.08.2011 and the Sale Deed was executed on 23.12.2011 and Registered in the office of the Sub-Registrar, Villivakkam, Chennai. On 18.11.2011 and 03.12.2011 a separate Agreement was entered into with respect to the balance Sale Consideration of Rs.3,00,000/- for the purpose of obtaining Patta in the name of the 3rd respondent. The petitioner has also issued a cheque for a sum of Rs.3,00,000/- on 090399 and when the same was presented in the bankers of the 3rd respondent it was returned with the endorsement “in sufficient funds”. The 3rd respondent has filed the petition under Section 138 of the Negotiable Instruments Act and the same is pending before the Criminal court.

5. I submit that in the meantime, the Patta has been issued in my name on 22.08.2016 and therefore, the petitioner has to settle the amount of Rs.3,00,000/- payable to the 3rd respondent. The 3rd respondent has no objection for transferring the patta in favour of the petitioner subject to the payment of Rs.3,00,000/- agreed by the petitioner in the agreement dated 03.12.2011.”

6. The learned counsel submitted that even though this counter affidavit is a defence document, the nature of the document is such that it is unimpeachable and sterling in quality. The learned counsel therefore submitted that the falsity of the claim made by the respondent is clearly revealed by the counter affidavit filed in the Writ Petition. In view of the same, there is no enforceable debt or liability, insofar as the petitioner is concerned.

7. During the last hearing, it was brought to the notice of this Court that the counsel who was representing the respondent is no more. Therefore, this Court had adjourned the case. Till today the respondent has not engaged any counsel and there is no representation for the respondent.

8. This Court has carefully considered the submissions made by the learned counsel for the petitioner and the