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TMI Blog2021 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and D.W. 1 and D3 and D2 sale agreements and it is found that the complainant has not come to the Court with clean hands. The accused has successfully demonstrated the suggestive case. The cheque is a blank signed cheque for two sale agreements and there is another case filed by brother-in-law of the complainant in Puducherry area and in respect of the amount received, there are also duly repaid the amount by cheque, the same was duly encashed, as per admission of P.W. 1 in the cross examination and hence, the accused has successfully discharged the burden of proof by preponderance of probability by establishing that such a huge amount has not been given as a loan by the complainant and in view of such finding, it is again for the complainant to prove that he had source of income to lend such a huge amount of ₹ 20,00,000/- - Admittedly, he had not filed any document to show that he had possessed such huge amount of ₹ 20 lakhs. In the cross examination, he had categorically admitted that he had initially paid ₹ 1 lakh and subsequently, he has developed the corpus to lend ₹ 20 lakhs and he admitted that he had not disclosed the same in the income tax retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mo as Insufficient Funds on 24.07.2012 with endorsement. Then the complainant sent a legal notice Ex. P4 and Ex. P5 dated 26.07.2012 to the house of accused which was returned with an endorsement unclaimed and the returned cover as Ex. P7 and another notice to his shop which was served through acknowledgment Ex. P6. The accused has issued a cheque knowing that he did not have sufficient funds in his account. 6. The suggestive case of the defence is that there was a sale agreement between the parties namely wife and brother-in-law of the private complainant and he borrowed ₹ 3 lakhs, as a security, they have executed the said sale deed and repaid the amount by issuance of cheque and dates and details of the said payment is made and the blanked cheque given for security has been misused. 7. To substantiate the same, the accused examined his wife who stated that her husband borrowed a sum of ₹ 3,00,000/- on 08.01.2010 from the complainant. The complainant obtained blank signed pro notes and blank signed cheques from the accused and also a sale agreement Ex. P2 dated 08.01.2010 from the complainant. The complainant obtained blank signed pro notes and blank signed ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has given the loan of such a huge amount of ₹ 20 lakhs. He could have mention the date on which he had given the loan and hence, the non mentioning of date of giving loan amount in the complaint in his evidence as P.W. 1, assumes significance. 11. In the cross examination, P.W. 1, had categorically admitted that he has not received any document from the accused for borrowing the loan amount of ₹ 20 lakhs in the year, 2012, is a very huge amount. Without getting any document, evidencing such a transaction or hand loan to the extent of ₹ 20 lakhs, without getting any document as a collateral, the Hon'ble Supreme Court reported in A.I.R. 2008, SC page 278 : 2007 (12) SCC page 71 in John K. John Vs. Tom Varghese and another, has held as follows: The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the Court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is said to have taken place in the year 2012. It is his admission that he had no transaction with the accused earlier 2012. What the complainant has stated on earlier occasion has been proved to be false at a later stage by giving the cheque details and the payment details given by the accused. Hence, the accused was able to establish that the complainant is not a witness of truth and reliability. 16. Furthermore, in order to probabilise the suggestive case of the accused, D3 and D4 were marked through D.W. 1. D.W. 3 is the legal notice issued by the wife of the accused and D2 is the certified copy of the sale agreement entered between the parties. D3 notice confirms that there a transaction between the complainant and the wife of the accused on 08.01.2010. Though, in the initial cross examination, it was denied by P.W. 1, however, in the later part, he has accepted it. The complainant admitted the sale agreement entered between him with his brother-in-law of the accused on 04.01.2010. 17. Taking into the close dates between the parties and the date of the sale agreement with that of the date of the cheque, the lower appellate Court has rightly come to the conclusion that wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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