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TMI Blog2021 (8) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... in need of money for clearing his personal debts and hence, he has approached the complainant for hand loan and considering the relationship, the complainant has advanced hand loan of Rs. 4,25,000/- to accused in the month of November, 2010. The accused agreed to repay the loan within two months and when the accused failed to repay the loan within two months, the complainant has approached him and demanded repayment of loan. Initially, the accused went on postponing and finally issued a cheque dated 02.11.2012 for Rs. 4,25,000/- drawn on State Bank of India, Industrial Estate, Bhankur, Kalaburagi district towards the discharge of his legally enforceable debt. The complainant has presented the said cheque to his Banker i.e., ING VYSYA Bank limited, Super Market, Kalaburagi for encashment and it was returned with an endorsement 'funds insufficient' on 12.12.2012. Thereafter, on 03.01.2013, the complainant has got issued a legal notice to the accused making demand for repayment of amount covered under the cheque and notice was served on the accused, but, he failed to make any payment. Hence, it is alleged that the accused has cheated the complainant by issuing a cheque having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance between the parties, the complainant has advanced loan; that the learned Magistrate has also failed to consider that except formal denial, the accused has not rebutted the said presumption and hence, the learned Magistrate was erred in acquitting the accused; the learned Magistrate has also failed to consider that the accused has admitted availment of loan of Rs. 50,000/- and his contention regarding repayment and as a security issuance of cheque in dispute, but, he has failed to prove the said defence; the learned Magistrate has failed to consider Exs. P1 and P2, which are the demand promissory note and acknowledgment receipt respectively regarding payment of the amount as hand loan and further did not appreciate the evidence of PW. 2 and hence, he would contend that accused has failed to rebut the statutory presumption available in favour of the appellant/complainant and sought for allowing the appeal by setting aside the impugned judgment by convicting the accused/respondent herein. 8. Per contra, the learned counsel for the respondent/accused has supported the impugned judgment of the learned Magistrate and he would contend that in paragraph Nos. 18 and 19 of the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in C.C. No. 205/2010. Ex. D4 is the postal receipt for having sent reply notice and Ex. D5 is the postal acknowledgement. 12. According to the complainant, he is acquainted with the accused and in the month of November, 2010, as per the request of the accused, he advanced hand loan of Rs. 4,25,000/- to the accused and the accused has promised to repay the same within two months and at the time of availment of loan, he has executed Exs. P1 and P2. It is also asserted by the complainant that when the accused has failed to repay the loan as agreed, he issued a cheque dated 02.11.2012 for a sum of Rs. 4,25,000/-. The defence of the accused is that he has availed loan of Rs. 50,000/- from the complainant in the month of January, 2011 and he has repaid the same in the month of April, 2011, but, he could not repay the interest of Rs. 10,000/- and the complainant took a blank cheque as a security for the interest part. Hence, he has disputed the debt of Rs. 4,25,000/-. 13. It is an undisputed fact that the cheque belongs to the accused and there is no dispute regarding signature on the cheque. Hence, the presumption under Section 139 of N.I. Act is available to the accused as observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was in his house. He admits that this huge amount was not shown in the income tax return submitted for the year 2010. He claimed that as there was agreement to return the same within two months, he has not reported it. But, admittedly the same was not returned within two months as per the case of the complainant himself. But, he did not show this in the income tax return. He has also admitted that for the next two years, he has not shown this amount in his income tax return for having lent to accused. Apart from that, it is alleged that the hand loan was advanced in the year 2010, but, for two years, the complainant has not taken any steps by issuing any legal notice to the accused. The amount is not a small amount and it is a heavy amount. Further, the complainant claims that he is acquainted with the accused. They are not close friends and there were no financial transactions between them. Under such circumstances, it is hard to accept that the complainant has advanced such a huge amount to the accused without any interest being charged. 15. In the further cross examination, he admitted that normally such a huge amount would be kept in Bank, but, he claims that he has kept in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itness to Exs. P1 and P2. He claimed that they were executed by the accused by approaching him. In the cross examination, he admitted that he is also a partner in Saptagiri Finance Company along with the complainant wherein the complainant is a Managing Director. He has also admitted that at the time of signing of Exs. P1 and P2, the complainant was not present. Interestingly, in Exs. D1 and D3 also this witness is shown to be an eyewitness. Further, he never identified his signature and his signature was also not marked on Exs. P1 and P2. As such, it is evident that this witness being closely acquainted with the complainant and being a partner in the finance company with the complainant, he supporting him. His evidence also disclose that the complainant though running a finance company, he is doing money lending business illegally without licence. Admittedly, the accused has denied his signature on Exs. P1 and P2. The complainant has not made any efforts to get the signature of PW. 2 marked and he identifying the signature of accused on Exs. P1 and P2 does not have any relevancy at all as admittedly Exs. P1 and P2 were signed in his absence. Apart from that, in Ex. P5-legal notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in the case of M/s. Kalamani Tax and Anr. Vs. P. Balasubramanian, wherein it is observed as under: "Negotiable Instruments Act, 1881, Section 138, 139 and 118-Dishonour of cheque-Statutory presumption-Once the Signature of an accused on the cheque/negotiable instrument are established, then these "reverse onus" clauses become operative-Obligation shifts upon the accused to discharge the presumption imposed upon him-Appeal dismissed." 20. There is absolutely no dispute regarding the said principles and these principles are in consonance with the principles enunciated in the case of Rangappa (Supra) as well as in the case reported in AIR 2008 SC 1325 [Krishna Janardhan Bhat vs. Dattatreya Hegde]. 21. Admittedly, the initial presumption is in favour of the complainant and reverse onus clauses become operative and obligations shifts upon the accused to rebut the said presumption. In the instant case also, the accused by way of cross examining the complainant has exposed him and that itself establishes that presumption is rebutted. Hence, the principles enunciated in the above cited decision does not come to the aid of the complainant in any way. He has further placed reliance on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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