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TMI Blog2020 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of PW-1 and DW-2 it clearly goes to show that the complainant both by his oral and documentary evidence has clearly established that the cheque in question was issued to him by the accused towards the repayment of the loan amount which is said to have been taken by the accused, from him. Merely because the complainant has not produced his bank passbook or statement, by that itself, it cannot be suspected that there was no such loan transaction. The oral and documentary evidence led by the complainant and the admissions made by the accused in his cross-examination and also the non denying of the submissions of PW-1 in his cross- examination would clearly go to establish that the accused had availed a loan of ₹ 9,35,000/- from the complainant and towards the repayment of the same, he had issued the cheque marked at Ex.P4. Thus, apart from a mere legal presumption under S.139 of N.I. Act, the complainant's evidence further crystalises the said presumption and proves it to be a fact. Service of notice - HELD THAT:- The notice sent under certificate of posting can also be deemed as having been delivered to the addressee / accused. Thus, even after service of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused did not repay the cheque amount even after serving a legal notice dated 17.09.2004 upon him, the complainant was constrained to file the complaint before the Court. The accused appeared through his counsel and contested the matter. In order to prove the alleged guilt against the accused, complainant himself got examined as PW-1 and got marked documents at Exs.P1 to P9. The accused got himself examined as DW-1 and got examined one Prakash Chand as DW-2 and got marked documents at Exs.D1 to D13. After hearing arguments from both side, the Trial Court by its impugned Judgment of conviction and Order on sentence dated 22.04.2008, convicted the accused for the offence punishable under S.138 of the N.I. Act and sentenced him accordingly. 3. Aggrieved by the same, the accused preferred an appeal before the learned Sessions Judge, City Fast Track Court - VII, Bangalore City in Criminal Appeal No.422/2008, which Court, after hearing both side, by its considered Judgment dated 26.10.2010, dismissed the appeal by confirming the Judgment of conviction passed by the Trial Court. It is challenging the said Judgment of conviction and Order on sentence, the accused has preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged loan transaction. 9. Per contra, learned counsel for the respondent - complainant, in his brief arguments submitted that it is an admitted fact that the complainant and accused were known to each other. Though DW-2 is father of the complainant, but by that itself, it cannot be considered that there was no power for the son to lend money to the accused. He also submitted that issuance of the cheque and the hand- writing upon the cheque have all been admitted by the accused himself. In such a situation, the legal presumption under S.139 of the N.I. Act operates in favour of the complainant. The said presumption coupled with trustworthy evidence of PW-1 has clearly proved the loan transaction and the non re-payment of the loan by the accused. As such, both the Courts below have rightly appreciated the evidence led before it and have convicted the accused for the alleged guilt. 10. The complainant in his evidence as PW-1 in the examination-in-chief itself has stated that the alleged loan given to the accused was through a cheque bearing No.408387 dated 03.05.2002 drawn on Canara Bank, Chickpet Branch, Bengaluru. The same was duly encashed by the accused. He has also st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his son i.e. the complainant. 12. DW-2 also specifically denied a suggestion that the alleged financial transaction was only between himself and the accused and that there was no transaction between his son / complainant and the accused. By stating so, DW-2 has also shown that the alleged financial transaction was not confined between himself and the accused but there was such a transaction between the complainant and the accused also. 13. The accused who got himself examined as DW-1 has stated that, in his transaction with DW-2 who is the father of the complainant, a blank cheque duly signed by him and an 'on demand promissory note' were given by him to the father of the complainant. By stating so, he has shown that he was in the habit of borrowing money by executing 'on demand promissory notes' and was issuing cheques. The said statement of DW-1 would rather support the contention of the complainant that accused was acquainted with him and, at the demand of the accused, he had financially assisted the accused by lending loan in which regard the accused had executed an 'on demand promissory note' and towards repayment of the loan also issued a che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom a mere legal presumption under S.139 of N.I. Act, the complainant's evidence further crystalises the said presumption and proves it to be a fact. 16. Admittedly the said cheque at Ex.P4 came to be dishonoured with the reason of 'insufficiency of funds' as could be seen from the banker's endorsement which is at Ex.P5. Though the legal notice sent to the accused by the complainant as per Ex.P8 came to be returned to the sender as at Ex.P8(a), the postal shara is that the 'article was not claimed'. Thus when it is not claimed despite the tender made to an addressee, it is deemed that the addressee is served with the said article. Otherwise, he would not have remained not claiming the notice. Simultaneously the complainant has also shown that he has sent the said notice under 'certificate of posting' as could be seen from Ex.P7. The said notice sent under certificate of posting is said to have been not returned to the complainant. As such, the notice sent under certificate of posting can also be deemed as having been delivered to the addressee / accused. Thus, even after service of such a notice, the accused has not responded to the same in any ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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