9911796707
TMI Blog2020 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that cheque book issued reflects two names i.e. Manish Kanubhai Vora and Dhara Manish Vora. Dhara Manish Vora appears to be ex-wife of the present accused and the disputed cheque leaf from the cheque book appears to have been issued in the year 2012. Therefore, by leading evidence through the cross examination of the complainant, as also producing his own witnesses, the accused has been successful to rebut the presumption. By leading evidence, the accused is successful in showing that the consideration and debt did not exist or under the peculiar circumstance of the case, the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. Since the accused is successful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No.2 herein came to be acquitted of the charge under Section 138 of the Negotiable Instruments Act. The case of the complainant, as pleaded, was that, the complainant-accused are father in-law and son in-law respectively. Because of the said relationship, the accused had obtained hand loan, to meet with the financial need, of ₹ 3,05,000/- for 2 years in February, 2014 from the complainant. It is further the case of the complainant that accused issued cheque of ₹ 3,05,000/- dtd. 02.02.2016 bearing No.497496 drawn on ICICI Bank, Rajkot. According to the complainant, the accused assured that the cheque will be honored on presentation in the Bank and the complainant will get money. Pursuant thereto, the complainant depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2014. He has further submitted that accused has failed to rebut that presumption and therefore, learned trial Judge should not have gone into the issue of capacity to lend the money to the accused. He has further submitted that the defence raised by the accused is not probable and he has filed a complaint about his cheque book missing subsequent to the issuance of notice for returned cheque. Therefore, according to the submission of Mr.Karathiya, it is not believable at all. He has further submitted that even prior thereto, accused has never said that, his cheque book is missing and out of which, the present cheque is being misused. Therefore, learned trial Judge has wrongly shifted the burden on the complainant to prove his case against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ought to suppose that no consideration and debt existed then only, presumption can be said to have rebutted. He has contended that accused has not disputed his signature over the cheque and therefore, presumption has to be raised with regard to the consideration and the legally enforceable debt. Heard Mr.Karathiya, learned advocate for the applicant. He has taken me through the impugned judgment and the copy of the evidence, which he has produced by separate compilation. From the evidence led before the Court, it is clear that the accused was driven out of the house where daughter of the complainant and the accused resided together leaving behind him all his belongings. Thereafter, since June, 2014, the daughter of the complainant has st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court, the Bank Official examined on behalf of the accused deposed to that the impugned cheque is non CTS Cheque and that cheque book issued reflects two names i.e. Manish Kanubhai Vora and Dhara Manish Vora. Dhara Manish Vora appears to be ex-wife of the present accused and the disputed cheque leaf from the cheque book appears to have been issued in the year 2012. Therefore, by leading evidence through the cross examination of the complainant, as also producing his own witnesses, the accused has been successful to rebut the presumption. By leading evidence, as aforesaid, the accused is successful in showing that the consideration and debt did not exist or under the peculiar circumstance of the case, the non- existence of consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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