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TMI Blog2020 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary is proved by the accused/respondent. From the evidence, it is not a case where source of income is not established. The amount was advanced on the basis of personal relation, therefore, preparation of other documents was not required under the law and cheque issued by the respondent is the best document for showing liability of the respondent - On an overall assessment, it can be said that the finding of the Sessions Court is against weight of the evidence and same is not legal because it is contrary to the provisions of the Act, 1881. In view of the evidence of both sides, argument advanced on behalf of the respondent is not acceptable and the act of the respondent falls within mischief of Section 138 of the Act, 1881. Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 through registered post which was duly served on the respondent on 28-7-2011. Despite receiving notice, respondent failed to pay the amount that is why complaint was filed. The trial court convicted the respondent but in appeal the said Sessions Court reversed the finding of the trial court and acquitted the respondent. 3. Learned counsel for the appellant submits as under: i) From the evidence of complainant Sanjay Gupta (PW/1), Branch Manager of Axis Bank, Priyadutt Panigrahi (PW/2) and PW/3 Shyamlal Sahu, it is established that respondent borrowed a sum of ₹ 7,00,000/- from the appellant in presence of Shyamlal Sahu (PW/3) and cheque was issued by the respondent in favour of appellant which was placed before the Bank and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount was not filled up by the respondent but it is filled up by the appellant after receiving the blank cheque. The cheque was not issued on 8-7-2011 but same was given four years back from the said date. iv) Ex.D/2 is notice issued by the respondent to Ku. Rathi Dhruv, Manjeet Singh and appellant. Notice was issued on 15-2-2011 and after that relation between the parties was strained, therefore, question of giving ₹ 7,00,000/- in the month of July 2011 does not arise. v) Appellant deposed before the trial court that one Milan Yadav was present at the time of delivery of ₹ 7,00,000/- but the said Milan Yadav is not examined before the trial court, therefore, finding of the Sessions Court is not liable to be interfered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... version of this witness, respondent is economically sound and looking to his financial status, he advanced a sum to him. As per version of this witness (para 11) he is a Jeweller having turnover of ₹ 20,000,00/- per month. In rebuttal, respondent did not enter into witness box. His witnesses deposed regarding borrowing some different amount, but their version is not acceptable in absence of version of respondent himself. 8. As per Section 139 of the Negotiable Instruments Act,1881, It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Section 118 of the Act, 1881 reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule of law, but it is a rule of prudence and presumption under Section 139 of the Act, 1881 is rule of law and presumption has to be drawn by the court as per Section 139 of the Act, 1881. When legal presumption is available in favour of the appellant which is not rebutted, no corroboration is required to version of appellant by submitting income tax return. The matter related to income tax is issue between the Revenue and Assessee, therefore, non-filing of income tax return cannot be a solitary basis for rejecting the evidence of the appellant. From the evidence, it is not a case where source of income is not established. The amount was advanced on the basis of personal relation, therefore, preparation of other documents was not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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