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TMI Blog2019 (8) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the complaint, is as follows: The accused owed a sum of Rs. 1,50,000/- to him. Towards the discharge of that debt, the accused issued a cheque dated 20.04.2004 for Rs. 1,50,000/- to him. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient funds in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The notice was returned unserved. The accused did not pay the amount of the cheque. 3.The accused pleaded not guilty. Thereupon, the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 and DW2 were examined on the side of the accused and Exts.D1 to D4 documents wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: There was no financial transaction between her and the complainant. She had not borrowed any amount from the complainant on 15.02.2004 or at any time. She had not issued any cheque to the complainant in discharge of such liability. In the year 2002, 10 cents of property was sold by her mother to the father of the complainant. The aforesaid property had been mortgaged to the bank. Her mother told the father of the complainant that the property could be sold only after discharging the liability towards the bank. Then, the father of the complainant agreed to remit the amount in the bank but he wanted a signed blank cheque. The mother of the accused, without the knowledge of the accused, took a blank cheque of the accused and gave it to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n tune with the plea of the accused. She would say that she had given the cheque to the father of the complainant without the knowledge of the accused. She would even say that the aforesaid cheque did not bear the signature of the accused. 10. This is a case in which neither the complainant nor the accused has disclosed the real truth before the court. No prudent person would have accepted an unsigned blank cheque leaf as security from another person. The plea of the accused that, her mother had given an unsigned blank cheque belonging to her to the father of the complainant and that he readily accepted it as security for the amount paid by him for discharging the liability towards the bank, cannot be swallowed as such by the court. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o suppose that no consideration and debt existed. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. But, the court shall not insist in every case that the accused should disprove the non-existence of consideration or debt by leading direct evidence. The reason is that it is difficult to prove a negative fact by direct evidence. At the same time, bare denial of the existence of debt or liability, would not serve any useful purpose. The accused has to bring on record something which is probable. The accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven evidence regarding the sale of 10 cents of property by her to the father of the complainant and the payment of the amount due to the bank by the father of the complainant. There is no cross examination of DW1 on these aspects. The complainant has no case that the amount paid by his father to discharge the liability towards the bank was adjusted in the sale consideration. In such circumstances, the evidence of DW1 that she had given Ext.P1 cheque to the father of the complainant as security for the amount due to him, is reliable and trustworthy. Only that part of the evidence of DW1 that it was an unsigned blank cheque which cannot be believed. The facts and circumstances indicate the probability that the accused had signed the cheque an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would lend such substantial amount to her without obtaining any security. 17. At this juncture, it is significant that there is no averment in the complaint that the accused had borrowed Rs. 1,50,000/- from the complainant on 15.02.2004 or on any other date. The averment in the complaint is only that the accused owed Rs. 1,50,000/- to the complainant. In the particular circumstances of the present case, absence of averment in the complaint on that aspect, is fatal to the case of the complainant. 18. True, there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability (See M.M.T.C Limited v. Medchil Chemicals and Pharma (P) Limited : AIR 2002 SC 182). In view of the presum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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