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TMI Blog2015 (12) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... nor there was any document to show that the amount was borrowed from him. It has also not been proved on record that he maintained any accounts. Moreover, he has also not produced any account statement to show that he has taken amount from his father. As per statement of complainant, his father retired in December 2013 from Agricultural Department and the amount in question was given to the accused in February 2012 much prior to his retirement. The accused has placed on record three documents Ex.D1 to Ex.D3. Ex.D1 is copy of complaint filed by brother of the complainant in the year 2010 and two cheques amounting to ₹ 55,000/- have also been mentioned. Said cheques were returned due to insufficiency of funds and thereafter, complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 378(4) of the Code of Criminal Procedure for grant of leave against the judgment of acquittal dated 13.11.2015 passed by the Additional Chief Judicial Magistrate, Palwal, whereby, the accused-respondent has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act (for short 'NI Act'). A complaint was filed against the accused-respondent under Section 138 of the NI Act stating therein that the accused borrowed a sum of ₹ 4,25,000/- from the complainant in the month of February 2012 for a period of two months and in discharge of said liability, the accused issued a cheque bearing No.015860 dated 02.05.2012 for ₹ 4,25,000/- from his account in favour of the complainant. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.C4. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded on 04.08.2014 wherein the accused denied all the allegations levelled against him. In defence, the accused tendered documents i.e., Ex.D1 copy of complaint, Ex.D2 copy of statement of Sandeep and Ex.D3 copy of order passed in case titled as Sandeep vs. Yogesh. On appraisal of evidence available on record and after hearing counsel for the parties, the trial Court dismissed the complaint of the applicant-complainant and the accused was acquitted of the charge levelled against him. Learned counsel for the applicant submits that the trial Court has acquitted the accused without appreciation of evidence available on record. The version of the complainant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted within a reasonable time after its date and before its maturity; (d)as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; (e)as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f)as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped ; (g)that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heques amounting to ₹ 55,000/- have also been mentioned. Said cheques were returned due to insufficiency of funds and thereafter, complaint was filed. No doubt, the complaint was dismissed as withdrawn but it shows that the cheque in dispute is also of the same series on the basis of which, earlier complaint was filed, which was dismissed as withdrawn. It has specifically been mentioned by the trial Court that it cannot be ruled out that the cheque in dispute was not misused as taken as a defence by the accused. The complainant has failed to prove as to in which capacity, he had paid such a huge amount without any document. The complainant has also failed to prove his case and the presumption goes against him. The trial Court consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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