9911796707
TMI Blog2020 (2) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... e or drawn on such a date. In the present case on hand, though the accused has admitted the signature of cheque and that it belongs to him, but has denied the transaction of there being any legally recoverable debt and any consideration was paid by virtue of the said cheque-Ex.P1. On going through the oral evidence and documents produced by the complainant, it is the case of the complainant that he has borrowed loan from his friend, father, brother and Bank/Society to pay to the accused of a sum of ₹ 14,00,000/- which he has paid at one stretch - it is hard to believe that the complainant has parted with the huge amount of ₹ 14,00,000/- without there being any supportive document or witness to the said parting of the amount. It is also relevant to note here that when the accused raises the plea that there is no transaction and he does not know the accused and places material for closure of the account, the onus shifts on the complainant to prove that he had parted with the amount as loan to the accused and that he had the financial capacity and a legally recoverable debt. On perusal of the entire evidence and the material documents, it is seen that the accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused issued a cheque for ₹ 14,00,000/- in favour of the complainant which is produced and marked as Ex.P-1. When the accused presented the cheque for encashment, the same came to be dishonoured on 04.04.2007 for the reasons of account closure, pursuant to which the complainant got issued a legal notice on 21.04.2007 which was duly served to the accused on 23.04.2007 and that the accused has not repaid the amount and neither he has replied to the legal notice. Hence, the complainant filed the present complaint against the accused. 4. After service of summons from the Trial Court, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. Thereafter, the parties went into trial before the learned Magistrate and the complainant got examined P.Ws. 1 to 4 and got marked Exs.P-1 to P-9. The accused got examined himself as sole witness and got marked Exs.D-1 and D-2. The complainant examined himself as P.W. 1 and he was subjected to cross-examination. 5. It is the defence taken by the accused that he does not know the complainant. He has no business transactions with the complainant and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge in whole or in part of any debt or other liability and he further contends that even as per Section 118 of the N.I. Act, there is a presumption that every instrument was made for consideration, once it has been accepted and endorsed, until the contrary is proved. So therefore, the learned counsel contends that the Trial Court has failed to appreciate the legal presumption in favour of the complainant and has erroneously held that the complainant is unable to prove the issue of legally recoverable debt beyond reasonable doubt. 10. The learned counsel for the appellant has taken me through the Exs.P-1 to P-8 and contended that Exs.P-6, 7, 8 and 9 are the documents to show that he has obtained loan from his father, friend, brother and from Co-operative Society and from that source along with the other sum of ₹ 6,00,000/- which he had kept at his home, he has paid a sum of ₹ 14,00,000/- at one stretch to the accused. 11. The learned counsel further contends that once there is a presumption under Section 139 of the N.I. Act and on admission and acceptance of the cheque by the accused, the burden shifts to the accused to disprove the case of the complainant that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally recoverable debt, the Trial Court is right in coming to a conclusion that the complainant has not established the factum of legally recoverable debt and hence, the order of acquittal is justified. 16. On perusal of the judgment of the learned Magistrate, it is noticed that the oral evidence of P.Ws. 1 to 4 and on appreciating the evidence of D.W. 1 and on perusal of Exs.P-1 to P-8 has come to the conclusion that the complainant has not produced any loan related documents to substantiate the contention of having taken loan from Urban Cooperative Bank and has neither examined any officials from the Society or Cooperative Bank to prove that he has borrowed the loan of ₹ 4,00,000/- and ₹ 1,65,000/-. Further the learned Trial Judge has come to a conclusion that the amount of loan that has been received by the complainant from his brothers in order to give the loan to the accused, no material has been produced to substantiate the same and that it is hard for an ordinary prudent man to believe that a huge sum of ₹ 14,00,000/- alleged to have been paid to the accused without obtaining any document and without charging any interest. 17. It is to be noted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. It is also to be noted that the complainant has not clearly and specifically stated with regard to the date of payment of the alleged loan to the accused either in his complaint or in his evidence, it is also hard to believe that after giving such a huge amount to a person, who is not so very close and the complainant being a businessman that he would part with such a huge amount without charging any interest. All these facts raise a doubt in the mind of this Court as to whether such a transaction has existed or happened. 21. The learned counsel for the appellant has relied on the following judgments: (i) K.N. Beena vs. Muniyappan and another reported in 2001 (7) Supreme 810. (ii) Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in 2008 (1) Supreme 306. (iii) Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441. 22. The learned counsel for the accused has also relied the following judgments: (i) K. Subramani vs. K. Damodara Naidu reported in (2015) 1 SCC 99. (ii) Basalingappa vs. Mudibasappa reported in 2019 (3) KCCR 2473. (iii) Shiva Murthy vs. Amruthraj reported in ILR 2008 KAR 4629. 23. The sum and substance of these judgments of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
