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TMI Blog2021 (6) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly the said document was not confronted to PW-1 in his cross-examination. Had the said document been confronted to PW-1 in his cross-examination, he would have given his explanation about the alleged entries, provided his attention were drawn to those entries in the said statement. Since none of those exercise is done by the accused, merely by production of the said statement, which is not self-explanatory regarding the alleged payment said to have been made in favour of the complainant, it cannot be held that the accused had made substantial repayment of the loan to the complainant. There are no erversity, illegality or irregularity in the said finding of the trial Court and the Sessions Judge's Court. As such, the judgment of conviction does not warrant any interference at the hands of this Court - The trial Court has sentenced the accused to pay a fine of ₹ 7,20,000/-, in default of payment of fine amount, to undergo simple imprisonment for a period of six months. It has further ordered that, out of the said fine amount, the accused shall pay ₹ 7,15,000/- to the complainant as compensation under Section 357 of Cr.P.C. and remaining ₹ 5,000/- to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding the payment of the cheque amount. However, the accused without meeting the demand made therein, sent an untenable reply, which constrained him to institute a criminal case against her in the trial Court for the offence punishable under Section 138 of N.I. Act. 4. The accused appeared in the trial Court and contested the matter through her counsel. 5. To prove his case, the complainant got examined himself as PW-1 and got marked documents from Exs.P-1 to P-15. From the accused side, accused got herself examined as DW-1 and got marked documents from Exs.D-1 to D-6. The trial Court after recording the evidence led before it and hearing both side, by its impugned judgment dated 03.01.2019, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced her to pay a fine of ₹ 7,20,000/-, in default, to undergo simple imprisonment for a period of six months. Challenging the said judgment of conviction passed by the trial Court, the accused preferred an appeal in Criminal Appeal No. 217/2019, before the learned Sessions Judge's Court, which, after hearing both side, by its impugned judgment dated 04.07.2019, dismissed the appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. In order to rebut the presumption, the accused has taken a contention that the cheques in question were issued as a security and that the accused had cleared the entire loan amount, still the complainant did not return the cheques. In that regard, suggestions were made to PW-1 in his cross-examination, which were not admitted as true by the witness. Further, the accused who got herself examined as DW-1 also in her examination-in-chief has reiterated the same defence which were denied in her cross-examination. On the other hand, at more than one place in her cross-examination DW-1 admitted a suggestion as true that the cheques in question were issued by her to the complainant towards the repayment of the loan amount. Therefore, when the accused after admitting that she had availed a loan of ₹ 6 lakhs from the complainant and that the cheques in question were issued by her to the complainant, it is for her to show that she has cleared the loan, as such, there existed no legally enforceable debt. In that regard, at least, the accused has to make out a case of preponderance of probabilities in her favour in order to rebut the presumption formed in favour of the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to a sum of ₹ 1,40,000/-, are not towards the loan of ₹ 6 lakhs availed by the accused from the complainant which is the subject matter of the present case. Further, DW-1 in her evidence has also stated that for the loan transaction, she had maintained a Note book duly signed by the complainant, however, the same was disputed by the complainant. As such, the said Note book though was marked as Ex.D-5, but, the same was subject to objection. Since the accused neither overcome the objection raised by the complainant nor could able to demonstrate as to how the said Note book act as an evidence about the alleged clearance of the loan of ₹ 6 lakhs, which is the subject matter of the present case, the said Note book at Ex.D-5 would not enure to the benefit of the accused. Therefore, the accused could not able to demonstrate that she has cleared the loan of ₹ 6 lakhs availed by her from the complainant. 14. Added to the above, the accused has also taken a contention that she has cleared the loan towards the complainant by paying the money to him, as well crediting some amount to the account of wife of the complainant. However, she has not produced any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more, admittedly the said document was not confronted to PW-1 in his cross-examination. Had the said document been confronted to PW-1 in his cross-examination, he would have given his explanation about the alleged entries, provided his attention were drawn to those entries in the said statement. Since none of those exercise is done by the accused, merely by production of the said statement, which is not self-explanatory regarding the alleged payment said to have been made in favour of the complainant, it cannot be held that the accused had made substantial repayment of the loan to the complainant. As such, the contention of the learned counsel for the petitioner on the said point is also not acceptable. 16. Barring the above, learned counsel for the petitioner has not canvassed any points worth to be considered. Both the trial Court, as well as the Sessions Judge's Court since after having appreciated and analysed the evidence placed before them in their proper perspective, have come to a correct finding of holding the accused guilty of the alleged offence, I do not find any perversity, illegality or irregularity in the said finding of the trial Court and the Sessions Judge& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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