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TMI Blog2020 (12) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused owed a sum of Rs. 2,04,000/- to the complainant and in discharge of the legally enforceable liability, he has issued four cheques drawn on Syndicate Bank for a sum of Rs. 51,000/- each in favour of the complainant. The accused while issuing the cheques assured that the same would be honoured. The cheques were presented and those cheques were returned dishonoured to the complainant with an endorsement dated 03.05.2007 and for dishonour of all the four cheques, the complainant got issued notice dated 08.05.2007 through registered post for due compliance with regard to Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short). The notice was duly served on the accused on 10.05.2007. The accused did not comply the demand, instead he gave untenable reply dated 22.05.2007. Hence, the present complaints were filed. 4. In pursuance of the complaints, the Trial Court issued summons against the accused and thereafter secured him. The accused denied the acquisitions made in the complaint and claimed trial. The complainant in order to substantiate her case examined herself as P.W.1 and got marked the documents at Exs.P.1 to 5 i.e., cheque, bank memo, notice, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not enough to come to a conclusion that the complainant has not made out the case. The Trial Judge also committed an error in coming to the conclusion that the complainant was not having source of income and other observation that the complainant has not produced any documents and the findings of the Trial Court that it is impossible to give huge amount to the accused is also erroneous. The other reason given by the Trial Court is with regard to the financial capacity no documents are produced. 8. The learned counsel would also submit that the Trial Judge culled out unimportant material while giving the reasons and not drawn the presumption. When the accused has admitted the issuance of the cheques, there was no need of producing the documents as held by the Trial Court. Hence, the Trial Judge has committed an error in appreciating both oral and documentary evidence placed on record and hence it requires interference of this Court. 9. The learned counsel for the appellant relied upon the judgment of the Apex Court in the case of RANGAPPA v. SRI MOHAN reported in (2010) 11 SCC 441. Referring this judgment, the learned counsel would contend that the Apex Court has categorically h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LTD. v. SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS reported in 2020 SCC Online SC 193. The learned counsel referring this judgment brought to my notice paragraph No.21 with regard to the issuance of the cheques for the second time, after the earlier cheques were dishonoured and also regarding presumption under Section 139 of the NI Act. The further observation that to rebut the presumption, the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security, is not believable in the absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. 13. The learned counsel referring this judgment would contend that the defence of the accused in this case is also that subject matter of the cheques are collected as security and also he had availed the loan of Rs. 20,000/- and repaid the same. Even though the accused did not choose to enter the witness box, the Trial Judge accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return the cheques instead of mis-used those cheques. The learned counsel draws the attention of this Court with regard to cross-examination of P.W.1 and would submit that the accused has probabilised the case. 18. The learned counsel would submit that there was no reason for the accused to have approached for availing the loan and nature of transaction is also not mentioned whether it is for interest or without interest. The relationship between complainant and accused is also not stated in the complaint and the fact that the complainant is the wife of a Railway Police is also suppressed. Date of loan is also not specified in the complaint as well as in the notice and even in the chief evidence. The complainant is the wife of the Police Constable. How she got the money, what was the source of her income and mode of payment also not stated and only the cheques, which are collected from the accused at the time of availing the amount of Rs. 20,000/- was mis-used. The complainant also in the cross- examination categorically admits that the accused has demanded to return the cheques. Hence, the defence of the accused is made out that after repayment of the amount which he was availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned counsel also relied upon the judgment reported in Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418, and referring to this Judgment brought to the notice of this Court in paragraph Nos.25.3, 26 and 29 submits that the Apex Court though discussed with regard to the presumption under Section 139 of the NI Act held that the presumption is rebuttable and in order to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 24. The learned counsel has referred to this Judgment with regard to the contention of the complainant counsel that the accused did not choose to enter into the witness box. The learned counsel also brought to the notice of this Court in paragraph Nos.26 and 29 with regard to financial capacity as well as contradictions and would contend that in the cross- examination of PW.1, the accused has disputed the financial capacity of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court are: (i) Whether the Trial Judge has committed an error in dismissing the complaint and whether it requires an interference of this Court? (ii) What order? Point Nos.(i) and (ii) 30. Having heard the submissions of both the Counsel and also considering the material available on record, i.e., pleadings as well as the documents produced and also the answers elicited from the mouth of the witness-P.W.1, this Court has to re-appreciate the material. The complainant in support of her cases, she examined herself as PW.1 and got marked the documents as Exs.P1 to P5. The accused did not choose to lead any defense evidence rebutting the evidence of the complainant. Before re-appreciating the material available on record both oral and documentary evidence, firstly, this Court would like to consider the evidence of the complainant, who has been examined as PW.1. 31. PW.1 in the affidavit in view of the chief evidence reiterated that the accused owes a sum of Rs. 2,04,000/- to the complainant and in discharge of the said legally enforceable liability, accused had issued four cheques for an amount of Rs. 51,000/- each. It is also her case that notice was issued and inspite of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/-. It is further elicited that she gave an amount of Rs. 1 Lakh earlier and thereafter she gave Rs. 1,04,000/- and the accused had requested her in the year 2006 for loan and does not remember the date and month. The said amount was given within 3 days of request made by the accused. Firstly, an amount of Rs. 1 Lakh and thereafter within 2 to 3 days remaining amount of Rs. 2,04,000/- was given. As security, she did not collect any cheque or any document. It is elicited that the accused has borrowed the loan to construct his house since she claimed that she has not seen the construction of his house at Ekkur and also she did not visit the said place. It is elicited that she is having the Bank account in Syndicate Bank and also at Vijaya Bank and she can produce her Bank account. It is elicited that except this transaction no other transactions took place between them. It is further elicited that the accused requested to return all the four cheques which were in her custody. It is further elicited that the amount of Rs. 1 Lakh was given in the first week of October 2006 and the remaining amount of Rs. 1,04,000/- was given in the month of December 2006. It is further elicited that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne whether the accused has made out the case by probabilising his defense. The main defense of the accused is that he borrowed only an amount of Rs. 20,000/- and he gave four cheques as security. The accused also claims that he repaid that amount with interest and the complainant did not return the cheques in spite of the demand. It is pertinent to note that in the cross-examination of PW.1, she categorically admits that the cheques four in number, which are in her custody, the accused requested her to return the same. The first defense of the accused is probabilised that after making the payment he requested the complainant to return the cheques. The admission of PW.1 is clear that there was a demand by the accused to return the cheques. It is also important to note that in the cross-examination of PW.1, it is categorically admitted that she is having acquaintance with the accused in connection with her cloth business and this accused used to purchase the clothes from her. In order to show that he used to purchase clothes, no document is placed and also in order to substantiate her claim that she is doing the cloth business also, no document is placed by her. Though she admits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es against different persons since she lent the money to five persons and out of that two persons belong to the accused office. It is also pertinent to note that she claims that she lent the money without any interest and it is rightly pointed out by the learned counsel appearing for the accused that the same is unnatural. When the complainant lent the money to this accused and also to several persons, the very claim of the complainant that she lent that amount without interest was also doubtful. When the accused has made out the ground that he demanded to return the cheques, which are in the custody of the complainant. When there is a specific admission on the part of the complainant that he has demanded to return the cheque why he demanded to returned the cheque, there is no explanation. Hence, this Court can draw an inference that the amount which was paid to the accused was returned. Hence, the accused has demanded to return the cheques, which were in the custody of the complainant. 36. The very contention of the complainant's counsel is that the accused has not led any evidence cannot be accepted even in the absence of leading the evidence entering into the witness box th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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