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TMI Blog2017 (8) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... I, Erode. The appellant has filed two complaints. C.C.No.56 of 2007 relates to dishonour of the Cheque bearing No.227827 dated 27.10.2005 for Rs. 5,00,000/-. C.C.No.185 of 2006 relates to dishonour of the Cheque bearing No.227828 dated 03.01.2006 for Rs. 5,00,000/-. 3. The case of the complainant is as follows:- [i] On 20.10.2005, the respondent herein took a loan of Rs. 5,00,000/- from the complainant promising to repay the same within a week with interest at the rate of 24% and issued a post-dated cheque dated 27.10.2015 for Rs. 5,00,000/- and paid Rs. 2,335/- towards interest for seven days. Subsequently, on 03.01.2006, the respondent took a loan of Rs. 5,00,000/- from the complainant promising to repay the same within 70 days with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques, each for Rs. 5,00,000/-. These two cheques were encashed by the husband of the complainant. In view of the undertaking [Ex.D.4] given by the complainant, the respondent instructed her Bank by means of letter [Ex.D.9] to stop payment for the said two cheques. As the husband of the complainant has not come forward to perform his part of contract under Ex.D.5, the suit has been filed in O.S.No.193 of 2006 on the file of the Principle District Court, Erode. Ex.D.8 is the decree copy. Thereafter, instead of returning the said two cheques, the complainant misused those cheques and filed two complaints, namely, C.C.Nos.56 of 2007 and C.C.No.185 of 2006. [iv] The complainant examined herself as D.W.1 and examined Arunkumar [D.W.3], who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents Act, the respondent can be presumed to have issued the cheques for the discharge of a legally enforceable debt. However, the said presumption is rebuttable vide RANGAPPA vs. SRI MOHAN [(2010) 11 SCC 441]. Therefore, the onus lies on the respondent to show that the real fact is not as presumed. 7. In KRISHNA JANARDHAN BHAT vs. DATTATRAYA G. HEGDE [(2008) 4 SCC 54] it has been held that the standard of proof required on the part of an accused is preponderance of probabilities . The respondent in order to rebut the presumption has adduced evidence. The definite case of the respondent is that, he has handed over two cheques to the complainant as security for the due performance of the agreement to purchase the property from the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to show that the complainant has lent Rs. 10,00,000/- to the respondent. The mere oral evidence of D.W.1 is not sufficient to hold that she had lent money to the respondent. The complainant has not been able to show any material to indicate that he has got so much money on the relevant dates to lend as claimed by her. The Hon'ble Supreme Court in KRISHNA JANARDHAN BHAT vs. DATTATRAYA G. HEGDE [(2008) 4 SCC 54] has held that Courts have to take notice that ordinarily in terms of Section 269-SS. Income Tax Act, any advance taken by way of loan of more than Rs. 20,000/- had to be made by an account payee cheque only. Under these circumstances, it can be safely concluded that the complainant has not proved that the cheques in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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