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TMI Blog2017 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... lant / Complainant is running a small provision store and the value of items in his shop would be ₹ 25,000/- and it was false to state that he issued cheque for ₹ 5,00,000/- and obtained a loan on 27.09.2014. Moreover, it is the evidence of P.W.1 that presently through Periyasamy, a cheque case was filed against him for ₹ 10,00,000/- on the file of Learned Judicial Magistrate, Bhavani and the same is pending. Apart from that, the Respondent / Accused had raised a plea that through Periyasamy, the Petitioner / Appellant had filed the present case before the trial Court. This Court comes to an irresistible conclusion that the Petitioner / Appellant / Complainant had failed to establish that Ex.P.1, Cheque was issued by the Respondent / Accused for a 'Legally Enforceable Debt'. Per contra, this Court is of the considered opinion that the Respondent / Accused had shaken the evidence of P.W.1 by gathering materials from his evidence. Moreover, P.W.1 had given a contradictory evidence during the trial in regard to the payment of loan amount to the Respondent / Accused. Looking at from any angle, the Judgment of the trial Court dated 24.10.2016 in S.T.C No.32 of 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of the cheque and other aspects were not denied by him. Unfortunately, the trial Court had not looked into these vital aspects in a proper and real perspective. 6. The Learned Counsel for the Petitioner / Appellant urges before this Court that the trial Court approached in acquitting the Respondent / Accused was not proper and in reality, the trial Court had failed to bear in mind a very vital fact that the cheque was issued by the Respondent / Accused to discharge his legal liability. 7. The Learned Counsel for the Petitioner / Appellant projects an argument that the trial Court had acquitted the Respondent / Accused in the main case based on irrelevant consideration and facts of the case. In short, the clear cut stand of the Petitioner / Appellant is that the trial Court had failed to consider the documents filed by the Petitioner / Appellant / Complainant and the evidence adduced on his side. 8. Per contra, it is the stand of the Respondent / Accused before the trial Court that he never borrowed the hand loans from the Petitioner / Appellant / Complainant and never issued the cheque in question in favour of the complainant for the 'Legally Enforceable Debt' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r / Appellant / Complainant was constrained to file the complaint before the trial Court against the Respondent / Accused in respect of an offence under Sections 138 and 142 of Negotiable Instruments Act and the said complaint was taken on file by the trial Court in S.T.C.No.32 of 2015. 13. In the instant case, it is true that no reply was given by the Respondent to Ex.P.3- Lawyers Notice. P.W.1 (Appellant / Complainant) in his evidence (cross examination) had deposed that he is engaged in the production of Mat and presently he is not doing any business because of the reason that he had sustained a loss and that he is not doing the money lending business and presently he is running a Provision Store, but had not filed any document to show about the same. 14. It is the further evidence of P.W.1 that he is not paying the income tax and he is well acquainted with the Respondent / Accused, but the Respondent / Accused is not his relative. Furthermore, he had deposed that in his complaint he had stated on what date and where the Respondent / Accused had asked for money from him but he does not exactly know the date on which the Respondent / Accused had asked for money and he paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne year and that Sidhivinayagar had filed a Civil Case in O.S.No.17 of 2012 as per Ex.D-1 (Certified copy of the Plaint) against him for non payment of the loan received by him and only based on the property mentioned in the sale deed shown to him, a case was filed by Sidhivinayagar before the Sub Court, Bhavani and Certified copy of the Sale Deed dated 25.05.1998 was Ex.D.3. 20. D.W.1 in his evidence had stated that later, a cheque case was filed by the Petitioner / Appellant in the name of Periyasamy before the Learned Judicial Magistrate, Bhavani and the present case was filed in the name of the Petitioner / Appellant / Complainant against him and that the Petitioner / Appellant had stated that if Sidhivinayagar pays a sum of ₹ 7,00,000/- then, all the cases would be withdrawn for which he had agreed and prayed time to repay the amount. But the said Sidhivinayagar had demanded the payment of ₹ 7,00,000/- immediately only then he informed that he would withdraw the cases and on that day he paid a sum of ₹ 1,50,000/- to Sidhivinayagar and asked for withdrawal of cases against him etc., 21. D.W.1 in his evidence had also stated that the Petitioner / Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his evidence (during cross examination) had stated that he had given the money of ₹ 5,00,000/- from his savings which he saved in a small manner. P.W.1 also had stated in his evidence that the Respondent / Accused had filled up the details in Ex.P.1 Cheque and when it was handed over to him, the cheque was filled up, but he does not know that the Respondent / Accused was not knowing English and further he also does not know as to whether the details in the cheque were filled up by the Respondent / Accused. 28. In the present case, it is to be pointed out by this Court that for a large sum of ₹ 5,00,000/- purportedly lent by the Petitioner / Appellant to the Respondent / Accused, no pro-note was taken by the Petitioner / Appellant / Complainant from the Respondent / Accused. Even in the absence of pro-note, except Ex.P.1, Cheque there appears to be no document in the form of receipt or in any other manner to and in favour of the Petitioner / Appellant / Complainant evidencing the payment of loan amount in question. In Law, the Respondent / Accused need not enter into the Witness Box and in fact he can maintain silence. The 'Onus of Proof' to establish a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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