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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 ..... re is no explanation as to why the accused has issued two cheques rather than a single cheque, when the alleged loan transaction is for ₹ 4.00 Lakhs. At the out-set, the complainant has not produced any material to show that, he had the financial capacity 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 ₹ 3.00 Lakhs by sale of his Plot. But, no documents have been produced to substantiate this contention also - When the civil dispute between the accused and the complainant was pending, question of the complainant advancing loan does not arise at all. Apart from that, in the complaint itself no specific date of advancement of loan was given and it is evident that all along that there was a civil dispute between the parties. Further, the financial status of the complainant is also not established. Further, the accused has exposed the complainant in respect of his financial capacity. Though the complainant has claimed that he has accumulated the amount of ₹ 3.00 Lakhs by way of sale of site, but, no material is produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant 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 ₹ 4.00 Lakhs to accused by way of cash in the 2nd week of January, 2002. It is also alleged that, after receiving the amount, the accused has issued two post-dated cheques for ₹ 2.00 Lakhs each dated 25.11.2003 and for repayment of the said loan amount, the complainant has approached the accused on number of times for repayment. But, the accused failed to repay the amount and as such the complainant has presented the said cheques to the Bank. The cheques were returned on 28.11.2003 with an endorsement 'Payment Stopped'. Then the complainant has got issued a legal notice to the accused demanding the cheque amounts and the legal notice came to be served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits. He would further submit that, though in the legal notice seven days period is given, but the complaint was filed as per the statutory requirement, as notice was served on 23.12.2003 and the complaint came to be filed on 16.01.2004. He would also contend that the evidence of PWs. 2 to 4 is not properly appreciated and as such, he would seek for allowing the appeal so as to convict the accused by setting aside the impugned judgment. 8. Having heard the arguments and on perusing the records, it is important to note here that, in the entire complaint, the complainant has not at all specifically asserted about the specific date of advancement of the hand loan. It is important to note here that the loan is alleged to have been advanced in the 2nd week of January 2002, that too to the tune of ₹ 4.00 Lakhs. ₹ 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased 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 accused on 03.12.2004, which is evident from Ex. D4. In the said suit, it is clearly held that the sale deed executed by the brother of the accused in favour of the complainant is not binding, by declaring the share of the accused as 1/3rd. When such a civil suit is being prosecuted from 1996 only, it is hard to accept the contention of the complainant that he had advanced ₹ 4.00 Lakhs without security to the accused in 2004. Further, he has also admitted that, he has preferred a Regular First Appeal against the said judgment and decree and the said appeal came to be dismissed. This fact is also evident from Ex. D15. His cross-examination further reveals that, he had sold the property purchased from the brother of accused subsequently during pendency of the appeal itself. That clearly discloses the intention of the complainant. When the civil dispute between the accused and the complainant was pending, question of the complainant advancing loan does not arise at all. Apart from that, in the complaint itself no specif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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