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TMI Blog2022 (1) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ect evidence as the leading negative evidence neither possible nor contemplated. This Court finds that the revision petitioner/accused has successfully demonstrated before the Court that the private complainant does not possess sufficient source of income to lend to ₹ 4 lakhs at relevant point of time - in the complaint and in the deposition, P.W.1 has stated that A3 has issued the cheque and hence it is found that the evidence of P.W.1 regarding passing of consideration for A1 and A2 issuance of cheque by A3 suffers from material implementation amounting to material contradiction on the point of passing of consideration and issuance of the cheque by A3 therefor. In the circumstances, the cloud has been created has to be issuance of the cheque by A3 to the private complainant. Before the trial Court, A2 was acquitted and there is no appeal as against the acquittal of A2 also assumes significance and hence I find that A3 has successfully demonstrated that there does not exists any legally enforceable debt between the respondent- complainant and the accused and theory forwarded by the private complainant in Ex.P3 complaint is totally different from that of the complaint a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 while Ex.P1 cheque is issued for prior to 2005 and also stated that he is only a sleeping partner. 5. Per contra, the learned counsel for the respondent/private complainant would submit that as per Ex.P8 re-joinder dated 29.07.2008, the copy of the impugned cheque was duly served on the accused herein and the signature in the cheque was not disputed and hence, he is entitled for the presumption under Section 139 of the Negotiable Instruments Act. Furthermore, he also drawn my attention to the finding rendered by both the Courts below that the defence has not probablised the suggestive case to rebut the statutory presumption. 6. The learned counsel for the revision petitioner relied upon a decisions of the Hon'ble Supreme Court reported in 2014 (1) MLW Crl.DCC 24 (SC) and 2014 (2) MLW Crl. DCC 129 (SC) and further, contended that the dishonoured cheque was marked as Ex.P1 through D.W.1 Manager of the Karur Vysa Bank Limited. At no point of time, the private complainant owned such an extent of ₹ 4 lakhs. Even for the entire financial year, the total transaction comes about only ₹ 8 lakh. Further most of the accounts is under minus account namely, Over Draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positive evidence by probablising the suggestive case. 12. As stated supra, A3 examined as D.W.3 and on behalf of the defense accused on Court summons, the Manager of Karur Vysa Bank (complainant bank) was examined as D.W.1 and marked Ex.D1 and D2 accounts opening form and the accounts statement for the account of the accused for the relevant period. D.W.2 is the Inspector of Police D.W.3 is the third accused. Though D.W.3 stated that Ex.P1 cheque, cheque was issued to some other person. 13. On perusal of the evidence of D.W.1 Manager of the Karur Vysya Bank (complainant Bank) and Ex.D1 bank account, it is seen that as found in the Ex.D1 Bank Account Opening Form of the respondent/complainant, it has been noted the monthly income of the respondent/complainant is only smaller amount of ₹ 5,000/- and further as per the statement of account which is marked as Ex.D2 [24.04.2008 to 30.04.2009] it has been found that there is no amount existed and contra to the same, it has been shown as [-] minus account of ₹ 9,491/- which is payable by the respondent/complainant to the bank towards balance due for the O.D Account borrowed by him. On this ground it is clearly proved t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Lower Appellate Court at Paragraph No.13 is found to be perverse. 18. The entire transaction for over a period is not a criteria, it only the financial position, on the date of the lending money or around the relevant date, are relevant and hence the evidence of D.W.1 is clear to the fact that private complaint is not having sufficient source of income to loan ₹ 4 lakhs (the subject matter of the transaction) and hence whether their exist a legally enforceable debt on the date of the issuance of the cheque is bereft of details and the same is under cloud of suspension and thus this Court finds that the revision petitioner/accused has successfully demonstrated before the Court that the private complainant does not possess sufficient source of income to lend to ₹ 4 lakhs at relevant point of time. In the decision reported in 2014 Madras Crl.DCC Page No.24 SC while lending, the source of advancing money is a relevant point period has held that, the same amounts to probablizing the defense case. 19. It remains to be stated that under Ex.P3 legal notice, the private complainant has alleged viz A2 has borrowed the amount on behalf of the A1 firm on 24.05.2008 for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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