9911796707
TMI Blog2021 (7) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... s and during business transaction, the accused has on so many occasions, has taken hand loan from the complainant as and when required and returned. It is further alleged that, on one such occasion, i.e., on 10.01.2011, the accused obtained hand loan of Rs. 12,15,000/- for the purpose of higher education of his daughter by name Dhatri, as she was studying in Germany and he promised the complainant to return the loan amount in six months. But, he failed to return the loan amount. After six months, when the complainant demanded to repay the loan amount, the accused started post-poning the matter on one or other pretext and finally the accused has issued a post-dated cheque bearing No. 702891 for Rs. 12,15,000/- mentioning the date as 12.07.2011, drawn on Canara Bank Branch, Hanumanthnagar Branch, Bangalore, pertaining to his account. Then the complainant has presented the said cheque on 12.07.2011 in the State Bank of Hyderabad, Gurumitkal Branch and the said cheque returned on 12.08.2011 with an endorsement "Funds Insufficient". Then the complainant made a demand for payment of cheque amount of Rs. 12,15,000/- through Lawyer's notice dated 24.08.2011, which was sent by registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his surety would not have been accepted by the Bank. He contended that Ex. D1 i.e., the document produced by accused establish his financial capacity, as he is the guarantor to the accused and the signature on the cheque is not at all disputed. Hence, he contended that the documentary evidence (Ex. D1) establish his capacity to advance the loan and sought for allowing the appeal by convicting the accused/respondent. 9. Per contra, learned counsel for the respondent/accused contended that, the alleged cheque was issued only for the purpose of development of the company and the complainant had monthly income of hardly Rs. 20,000/- and as such question of he advancing a huge loan of Rs. 12,15,000/- does not arise at all. He further argued that, he has made a contradictory statement regarding the date of issuance of cheque and though he claimed that the amount is also paid out of the sale proceeds of the land, no material is placed in this regard, except a bald assertion. Hence, he argued that, there is no legally recoverable debt and the presumption under Section 139 of the N.I. Act is rebutted by the accused/respondent and as such the burden was casted on the complainant to establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Apex Court has further observed that the prosecution must prove the guilt of the accused beyond all reasonable doubt, whereas the standard of proof so far as to prove the defence on the part of the accused is on preponderance of probabilities. Always when the presumption is raised, the onus is on the accused to raise a probable defence for rebutting the presumption, as observed by the Hon'ble Apex Court in (2010) 11 SCC 441 (Rangappa Vs. Sri Mohan). 13. In the light of the above settled principles, now the evidence of the complainant is required to be assessed. In his examination chief, the complainant has reiterated the factual aspects as alleged in the complaint. Ex. P1 is the cheque and Ex. P2 is the endorsement issued by the Bank, while Ex. P3 is the postal receipt for having sent the notice by registered post. Ex. P4 is the postal acknowledgement and Ex. P5 is a copy of legal notice, relied upon by the complainant. 14. In the cross-examination, the complainant claimed that, he is working in a Medical Store and his monthly salary is Rs. 10,000/-. Further he claims that, he owns 5.00 acres of land and he lent three houses on rent and getting monthly income of Rs. 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lasubramanian). But this is again in respect of reverse onus clause and therefore in the present case on hand, the respondent/accused by cross-examining the complainant has elicited that the complainant/appellant does not have financial capacity to advance the loan. When his financial status itself is not established and when the respondent/accused has rebutted the presumption by creating a dent in the case of prosecution the onus again shifts on the complainant/appellant to prove his financial status, but he has failed to discharge that onus. As such, in view of the decisions as referred above, the principles enunciated in the above cited decision relied by the learned counsel for the appellant does not come to the aid, as in the said case the accused has only raised the defence, which do not inspire the confidence and did not meet the standard of preponderance of probability. But, in the instant case the accused/respondent has discharged his burden on the basis of preponderance of probability. 18. The complainant has also not stated the date of issuance of cheque. In this context, learned counsel for the respondent/accused has relied on an unreported decision of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the cheque was issued towards legally enforceable debt, which is a mandatory requirement for attracting the offence under Section 138 of the N.I. Act. Hence, the learned Magistrate is justified in answering point under consideration in the negative and the principles enunciated in the above cited decisions relied on by the learned counsel for the respondents are directly applicable to the facts and circumstances of the case in hand. 19. The learned counsel for appellant has further placed reliance on the unreported decision of the High Court in Crl. A. No. 2563/2008 dated 06.09.2013 (Chandrashekhar v. Smt. Prathiba). But the facts and circumstances of the said case are entirely different and the said decision is not applicable to the case on hand, in view of the decision of the Hon'ble Apex Court reported in 2008(4) SC 54 and the decision of the Hon'ble Apex Court in Crl. A. No. 363/2019 (arising out of SLP Criminal No. 8641/2019). 20. Considering the facts and circumstances of this case, I am constrained to answer the point under consideration in the negative and proceed to pass following: ORDER The appeal is dismissed by confirming the judgment of acquittal dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
