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TMI Blog2021 (2) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... in the month of September-2003, again accused requested for further amount loan of Rs. 50,000/- with a promise to repay the same in the month January-2004. In the month of January-2004, accused approached the complainant stating that he is expected to receive more than Rs. 5,00,000/- in the month of March-2004 and accordingly, he requires another loan amount of Rs. 50,000/-, which was paid by complainant in cash in January-2004. On all these occasions, accused gave receipt for having received an amount of Rs. 2,00,000/- from complainant. 4. In the last week of March-2004, accused approached the complainant once again along with a bond paper of Rs. 100/- and requested the complainant to advance an additional amount of Rs. 1,60,000/-, which was required for him to settle his property deal and stated that he would execute an agreement on a bond paper for having received total amount of Rs. 3,60,000/-. Considering the request of accused, complainant paid a sum of Rs. 1,60,000/- in cash to accused on 30.03.2004 and accused executed receipt- cum-undertaking on the bond paper in the presence of witnesses for having received Rs. 3,60,000/- from complainant and took back four receipts, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquitted the accused for the offence punishable under Section 138 of the N.I.Act. 9. Heard Sri Sanjay S.Katageri learned counsel for appellant/complainant and Smt.Girija S.Hiremath, learned counsel for respondent/accused. It is contended by learned counsel for appellant that the Judgment of acquittal passed by trial Court is against known legal principles and material evidence on record and hence the same requires to be set aside and reversed. Learned counsel further contends that the trial Court has committed an error in acquitting the accused as the trial Court has failed to consider the presumption in law infavour of complainant. He further contends that the trial Court has committed grave error in coming to a conclusion that the burden of proof is on the complainant to prove his case. Whereas, as per Section 139 of the N.I.Act the presumption in law is infavour of complainant and it is for accused to rebut the said presumption. He further contends that the legal notice issued under certificate of posting is received by accused and so also the registered post has been returned to the sender, the complainant herein with an endorsement "not claimed returned to sender", which amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is on the basis of material evidence both oral and documentary and hence, it is in accordance with law and the same does not call for any interference by this Court. 14. Learned counsel further contends that complainant has not specifically stated the exact amount and exact date of payment of loan to accused. Though several times loan has been advanced, as per complainant, no specific date has been mentioned for having parted amount to accused. Learned counsel further contends that as per the version of complainant, four times loan has been granted with a condition that each time accused would repay within a short period. Despite the loan not being repaid, further grant of loan by complainant to accused cannot be believed, as no prudent man would part with loan once again when the previous amount has not been paid. Therefore the theory of complainant cannot be believed and rightfully trial Court has not accepted the same and hence acquitted the accused. 15. Learned counsel for accused further contends that complainant has not produced any material to show that he had sufficient source of income and capacity to make payment of loan and no such document has been produced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan on several occasions from April 2003 till March 2004 and in all paid a sum of Rs. 3,60,000/- to accused as loan. For repayment of said loan, accused has issued a cheque bearing No.009689 for a sum of Rs. 3,60,000/- in favour of complainant. Since the said cheque came to be dishonoured, complainant got issued a legal notice on 31.7.2004 by way of registered post as per Ex.P.3. Postal acknowledgement is produced as Ex.P.4. Legal notice was also served through certificate of posting. Since accused did not repay the amount despite service of legal notice, a complaint came to be registered by complainant for the offence punishable under section 138 of Negotiable Instruments Act. 20. It is the contention of accused that legal notice was served on accused and hence there is no compliance of section 138(b) of Negotiable Instruments Act. In order to see whether there is compliance of legal notice as contemplated under section 138(b) of Negotiable Instruments Act, it is necessary to see whether there is any denial of address so mentioned in the legal notice got issued by complainant. Admittedly there is no denial of address mentioned in legal notice to be that of accused. Except statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: PROVIDED that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability. 22. On going through the above provisions, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to do something more than just mere denials either by producing cogent material evidence or by eliciting in cross-examination of PW.1 with regard to loan amount having been repaid or non-existence of any legally recoverable debt. It is only when such rebuttal is made, with cogent material evidence to the satisfaction of Court, burden would shift to complainant to satisfy such rebuttal. Unless such cogent evidence is produced, or elicited in cross-examination of complainant/PW.1, burden would not shift to complainant and thereby the presumption would act in favour of complainant. 26. In the present case on hand, apart from mere denial and suggestions in cross-examination, no worthwhile evidence has been adduced and no cogent material has been produced or confronted to PW.1 complainant. Therefore the rebuttal as made by accused is no rebuttal in law or on facts of the case and presumption of law in favour of complainant has not been proved to the contrary by accused. Hence I answer point No.2 in the negative. 27. It is seen from the judgment of trial Court that trial Court is impressed by arguments of accused with regard to non service of notice which is erroneous in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble instrument is a holder in due course: PROVIDED that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 28. Even according to section 118(a) of Negotiable Instruments Act, every negotiable instrument is presumed to be drawn for consideration when it is accepted, indorsed, negotiated or transferred is towards the consideration. Therefore when these presumption arise in favour of complainant, it is the duty of accused to rebut these presumptions to prove to the contrary that there never existed any legally recoverable debt and the burden of proof is on accused to rebut such presumption. It is only when such rebuttal is made, burden will shift on complainant to prove his other financial requirements and to satisfy the said rebuttal. 29. In the present case non filing or production of books of accounts and income tax returns would not be fatal to the case of complainant as no rebuttal is made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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