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2022 (2) TMI 888

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..... were that, in the first week of December, 2015, the loan was advanced. Admittedly, the accused has not denied her signature on Ex. P1 (Cheque). But, the defence of the accused was that, she had chit transaction with the wife of the complainant and she was required to pay ₹ 40,000/-to the wife of the complainant and in respect of the said repayment, she had issued a blank cheque to the wife of the complainant - the cross-examination of the complainant discloses that, he was not possessing ₹ 4,80,000/-when he said to have advanced the loan. His own admission discloses that he was possessing ₹ 2,00,000/-with him and he had secured ₹ 2,80,000/-from his son. Admittedly, his pension is ₹ 16,000/-p.m., and he is retired 10 years earlier to the alleged transaction. He has not produced any document to show that, he was possessing hard cash of ₹ 2,00,000/-. Even otherwise, there is no evidence as to what his son was doing and what is his financial status - also, the complainant has withheld the best material evidence available to him and as such, an adverse inference is required to be drawn in this regard against him. There is material alteration of .....

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..... -Smt. R. Malavathi has availed hand-loan of ₹ 4,80,000/-from the complainant in the first week of December, 2015 and towards repayment of the hand loan, she issued a cheque for ₹ 4,80,000/-and when the same was presented by the complainant, it was dishonoured on 11.01.2016 for Insufficient Funds . It is also alleged that the complainant has got issued a legal notice 11.02.2016 and in spite of service of notice, the accused has not paid the cheque amount and hence, the complainant has filed a complaint before the trial Court under Section 200 of Cr.P.C. 4. After receipt of the complaint, the learned Magistrate has recorded the sworn statement of the complainant. After perusing the documents relied by the complainant, he took cognizance and issued process against the accused. The accused has appeared through her counsel and was enlarged on bail. The accusation under Section 138 of the N.I. Act was read-over and explained to the accused and she pleaded not guilty. 5. The complainant was examined as PW. 1 and he has placed reliance on seven documents marked at Exs. P1 to P7. Then the statement of accused under Section 313 of Cr.P.C. was recorded to enable the accused .....

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..... acity of the complainant is not established and as such, the presumption under Section 139 of the N.I. Act cannot be drawn and initial burden again shifts on the complainant to prove his financial status, which he has failed to do. Hence, she would contend that the trial Court is justified in acquitting the accused/respondent herein. 10. Having heard the arguments and perusing the records it is evident that, the complainant is making the specific allegation that he had advanced hand loan of ₹ 4,80,000/-to the accused in the first week of December, 2015. At the outset, it is to be noted here that the complainant has no where pleaded the specific date of advancement of the loan amount. This material pleading is missing. Further, there are no specific pleadings in the complaint as to when exactly the alleged cheque was issued to the complainant, by the accused. The complainant has no where specifically asserted the dates in this regard. The cheque is dated 08.01.2016. But, the allegations were that, in the first week of December, 2015, the loan was advanced. 11. Further, the complainant all along asserted that the said cheque was bounced on 11.01.2016 and he has issued not .....

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..... he claimed that he was financially assisted by his son to the tune of ₹ 2,80,000/-, the son of the complainant was not examined in this regard by the complainant. The complainant has withheld the best material evidence available to him and as such, an adverse inference is required to be drawn in this regard against him. 14. Apart from that, PW. 1 further admitted that the accused had no independent income of her own. When the accused has no independent income of her own, it is hard to accept that the complainant has ventured to advance such a huge amount of ₹ 4,80,000/-to her. On the contrary, he has admitted that, earlier his wife was doing chit business with the accused and hence to some extent, the accused proved the defence set up by her. Considering the admissions made by the complainant regarding his wife involved in chit business with the accused and his financial status, it is evident that the accused has rebutted the presumption available in favour of the complainant. Apart from that PW. 1 himself admitted that the contents of the cheque were written by some lady who accompanied the accused. This conduct of the complainant is also creates a doubt regarding t .....

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