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TMI Blog2019 (2) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of probability. The accused is supposed to rebut the presumption based on preponderance of probability only. Whereas, he is successful in this case to rebut the same by leading her own evidence. There are no reason to interfere with the order of acquittal based on sound reasonings and reached after appreciation of evidence. The applicant-original complainant has failed to make out a case to grant Special Leave to Appeal under sub-section (4) of Section 378 of the Code of Criminal Procedure, 1973 and, therefore, this application stands rejected. Application dismissed. - R/CRIMINAL MISC.APPLICATION NO. 8777 of 2019 - - - Dated:- 10-2-2020 - HONOURABLE MR.JUSTICE UMESH A. TRIVEDI MR YOGESH G KANADE FOR THE APPLICANT MR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rebut the presumption by leading cogent evidence and, therefore, this Court may grant Special Leave to Appeal and admit the appeal against respondent NO.2-original accused. 3. Though Mr.N.M.Ranka, learned advocate appears for respondent NO.2-original accused, is not present before the Court. However, I have gone through the record and proceedings as also the impugned order passed by the learned Magistrate. According to the complainant, on 16.5.2011, ₹ 3 lakhs were advanced to respondent NO.2-original accused as loan and writing on a stamp paper of ₹ 100 came to be executed before the notary. As recorded in the said agreement, it was required to be returned back within two years. However, it is reflected in the complaint t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate for the complainant was also not present to cross-examine respondent NO.2 herein, who entered the witness box. Therefore, the learned Magistrate was constrained to pass an order closing the right of the complainant to cross-examine respondent NO.2-original accused who entered the witness box. Thus, it is clear that what is deposed to by her before the Court is also an evidence. According to her deposition, it is clear that she required the said money for the treatment of his brother Rajubhai who was suffering from cancer and, therefore, the complainant had advanced that amount at 10% interest p.m. It is further stated in her deposition that advancing the said amount, the documents pertaining to her resident as also 5 blank signed ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of those ₹ 2 lakhs, the impugned cheque is of ₹ 1,50,000/- issued by her. As recorded in the impugned judgment, according to the complainant the transaction of ₹ 3 lakhs and amount of ₹ 2 lakhs both are different. However, when he was cross-examined for the time period when ₹ 2 lakhs were advanced, the complainant had to admit that it is in the year 2011. However, he had improved upon it and again stated that it was not of the year 2011 but it is of 2 years before when the said writing with regard to ₹ 2 lakhs executed. The learned Judge has in-extenso quoted the paragraph from the agreement Exh.6 and recorded the finding that the agreement dated 20.6.2014 is not for any different transaction entered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, considering his cross-examination, the said facts are nothing but an improvement. If at all the 2nd transaction of advancing ₹ 2 lakhs subsequent to the 1st transaction, there is no mention about it either in the complaint, notice or even in the deposition. Still however, the complainant asserted to justify that the impugned cheque which is returned unpaid for the 1st transaction of ₹ 3 lakhs only. However his cross-examination is considered, he comes out with different story to tell justifying the dues. 6. Considering the overall evidence brought on record, even considering the deposition of the accused who entered the witness box explaining the transaction, it is revealed that complainant appears to be a loan shark ..... X X X X Extracts X X X X X X X X Extracts X X X X
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