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TMI Blog2018 (10) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and complainant did not have any business relationship prior to the present one. Furthermore, the complainant was doing his business in Namakkal District. On the other hand, the accused was running a company in Mumbai. In the said circumstances, it is unbelievable that any prudent person would lend an amount of ₹ 25,00,000/- without obtaining any collateral security. Even assuming that Section 139 of NI Act is in favour of the complainant, it is necessary to analyze the other circumstances also. In the evidence given by PW1 during cross examination, he clearly admitted that he had not received any pro note from the accused - Further, he deposed that he had not verified about the properties which stand in the name of the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached the complainant/petitioner herein for financial assistance and he borrowed a sum of ₹ 25,00,000/- from the complainant. In order to discharge the above said loan, he issued a cheque dated 05.04.2006 drawn on City Bank N.A., Mumbai bearing serial Nos.833509 000037000, 309540 for the said sum. At the time of issuing the cheque, the second respondent promised to the complainant that the cheque will be honoured. On 09.05.2006, the complainant presented the said cheque for encashment in Indian Overseas Bank, Pudanchanthai Branch, but, on 18.05.2006, the said cheque has been dishonoured and returned for the reason Account closed . In view of the said dishonour on 16.06.2006, the complainant issued a statutory notice to all the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the trial court, all the accused preferred an appeal before the Principal Sessions Judge, Namakkal/First Appellate Court in Criminal Appeal No.66 of 2009. After elaborate enquiry, the learned Principal Sessions Judge, Namakkal set aside the order of conviction and sentence imposed upon the accused and allowed the appeal. 6. Having been aggrieved against the said Judgment, now the complainant preferred a criminal appeal before this court, praying to set aside the judgment passed by the Principal Sessions Judge, Namakkal and consequently to confirm the conviction and sentence awarded by the learned Judicial Magistrate No.II, Namakkal. 7. Today, when the appeal is taken up for consideration, I have heard the arguments of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany. It is the submission of the learned counsel for the respondents that in the trial court, it was pointed out that the said defence was proved by showing the copy of the complaint lodged before Police Station with regard to the theft of cheque. 11. Further, the learned counsel appearing for the respondent/accused had relied on the judgment reported in 2007 AIR SCW 6736 in the case of John K.John V.Tom Varghese and Anr, which reads as follows: The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - was given to the accused. No doubt, the amount of Rs,25,00,000/- is not a small amount. The accused and complainant did not have any business relationship prior to the present one. Furthermore, the complainant was doing his business in Namakkal District. On the other hand, the accused was running a company in Mumbai. In the said circumstances, it is unbelievable that any prudent person would lend an amount of ₹ 25,00,000/- without obtaining any collateral security. Even assuming that Section 139 of NI Act is in favour of the complainant, it is necessary to analyze the other circumstances also. In the evidence given by PW1 during cross examination, he clearly admitted that he had not received any pro note from the accused. Subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial onus of proof by showing the non-existence of the consideration, the complainant would invariably be held entitled to the benefit of presumption arising under Section 118(a) of the Act in his favour. The Court may not insist upon the accused to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. 44. In this case, the evidence on record makes it abundantly clear that the accused has proved the defence taken by her by preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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