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TMI Blog2022 (2) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case is that, the complainant is carrying on business in Bengaluru City and the accused is also a neighbouring resident. The accused was running two buses and he used to approach the complainant for various helps. It is further alleged that, accused has approached the complainant for hand loan on the ground that, he incurred huge loss. The complainant was keeping some amount with him for the purpose of constructing the house and considering the promise made by the accused of repayment at the earliest, he had advanced the hand loan of Rs. 4.00 Lakhs to accused by way of cash i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness was examined as DW. 2. The accused has also placed reliance on 18 documents marked at Exs. D1 to D18. 5. After hearing the learned counsels appearing for the parties on both sides, the learned Magistrate came to a conclusion that the complainant has failed to prove that the alleged cheques came to be issued in discharge of a legally enforceable debt and as such, the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of the N.I. Act. Therefore, the Trial Court by the impugned judgment has acquitted the accused of the offence under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal under Section 378(4) of Cr.P.C. 6. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been advanced in the 2nd week of January 2002, that too to the tune of Rs. 4.00 Lakhs. Rs. 4.00 Lakhs is a huge amount in 2002 and it is hard to accept the version of the complainant that he advanced such a huge amount without any security and without charging any interest. Further, he has not specifically stated the date of advancement of the alleged loan amount. Apart from that, in the complaint also there is no specific assertion as to when exactly, the cheques were handed over to the complainant. However, according to the complaint, on the same date of advancement of loan amount, two post-dated cheques as per Exs. P1 & P2 were handed-over to complainant, which were for Rs. 2.00 Lakhs each. If at all on the same day, both cheques vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the cross-examination of PW. 1 clearly disclose that, his financial capacity is exposed by the accused. He has not produced any documents to show his income. Further, he claims that, he secured Rs. 3.00 Lakhs by sale of his Plot. But, no documents have been produced to substantiate this contention also. 10. Apart from the above, it is also important to note here that the accused had filed a suit against the present complainant in O.S. No. 173/1996 along with his mother and brother seeking partition and separate possession on the ground that the present complainant had purchased the property belonging to Defendant No. 1, who is the brother of the present accused. The said suit was filed in the 1996 and was decreed in favour of the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of PWs. 2 to 4 does not assist the complainant in any way in proving his financial status. Hence, on perusal of the entire records, it is evident that the complainant has not approached the Court with clean hands. He has not referred the date of payment of loan and no reasons are given for charging no interest to such a huge amount, that too during pendency of the civil litigation between the parties. Further, there is no explanation from the complainant as to why he has issued two cheques on the same day for Rs. 2.00 Lakhs each, instead of one cheque. On the contrary, Exs. D1 and D2 clearly establish that, in the year 1995 itself, the accused has reported that the cheque book was lost and serial number of cheques at Ex. P2 and P3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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