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TMI Blog2016 (4) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... istance to an extent of Rs. 4.6 lakhs and the complainant gave a sum of Rs. 4.6 lakhs as financial assistance to the accused in April 2007 and as a security, the accused issued a cheque favouring the complainant, drawn on Canara Bank, D.V.G. Road, Bangalore, dated 29.09.2007, in a sum of Rs. 4.6 lakhs. The said cheque was presented for encashment by the complainant and the same was returned with endorsement "funds insufficient". Hence, the complainant got issued a legal notice through her advocate on 02.11.2007, calling upon the accused to pay back a sum of Rs. 4.6 lakhs within 15 days from the date of receipt of the notice lest, she would be constrained to take appropriate legal action. In spite of receipt of the legal notice, the accused did not repay the amount and hence a complaint was filed before the Chief Metropolitan Magistrate Court. After taking cognizance, process were issued and plea was recorded. The accused had pleaded not guilty and claimed to be tried. In order to bring home the accused, the complainant is examined herself as P.W. 1 and has got marked 7 documents. The accused is examined as D.W. 1 and her defence is that she had taken only a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: "1. Whether the trial Court as well as the Appellate Court have committed serious illegality while assessing the evidence placed on record in regard to the rebuttal of presumption available under Section 118(a) and 139 of the N.I. Act? 2. Whether any interference is called for by this Court, if so, to what extent?" REASONS 7. Point No. 1: What is argued before this Court by the learned counsel for the complainant is that the scope of revision available under Section 397 of Cr.P.C. is very limited and therefore revision petition may be dismissed. He has argued that the accused has not been able to probablise his defence and that the accused has not effectively rebutted the statutory presumption available under Section 118 and 139 of N.I. Act. 8. Learned counsel for the complainant has drawn the attention of this Court to some of the admissions elicited during the cross examination of accused as D.W. -1. During the course of cross examination, accused has admitted that complainant was very well known to her and both of them were living in the same locality for quite a long time. D.W. -1 has admitted that she has purchased a built house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic question is put to her stating as to whether she had given any amount to the accused after availing the same from others. To the said pointed question, she specifically deposed that she had availed loan from Siddamma, Threja, and Soma. She is stated to have availed a sum of Rs. 1 lakhs from Siddamma and availed from others by pledging her gold ornaments. She has specifically admitted that she has not mentioned to that effect in the complaint filed by her. During the course of cross examination, she has denied the suggestion put to her that she had given only a sum of 1.9 lakhs to the accused and the cheque in question marked as Ex. P2 was given as a security. 14. Learned counsel for the accused has relied upon the decision rendered in the case of K. SUBRAMANI v. K. DAMODARA NAIDU (2015) 1 SCC 99. The Hon'ble Supreme Court has held that burden is always upon the complainant to prove that debt was legally recoverable. As per the facts of the said case, complainant could not prove the source of income from which alleged loan was paid to the accused. Therefore, Hon'ble Supreme Court has held that presumption is in favour of holder of the cheque has stood rebutted. As per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant is that accused approached her for financial help on 07.04.2007 in person and she paid the amount by way of cheque. According to her, she paid the cheque drawn on SBI Bank, Thygarajnagar favouring the accused. Later on, she has made an attempt to withdraw the said admission stating that she had paid the entire amount to the accused by way of cash only and not by way of cheque. It is in this regard, further cross examination done on 10.11.2008 of PW-1 is relevant. 18. In her further cross examination conducted on 10.11.2008 she has specifically admitted that there was no monetary transaction between her and accused. But she has admitted the suggestion put to her that cheque was issued by her in favour of accused drawn on SBI Bank for Rs. 65,000/- and cheque was issued in favour of the son of the accused for Rs. 45,000/- drawn on SBI Bank and a sum of Rs. 23,000/- was given in favour of the accused relating to Mandara Chit fund. She has admitted that she has given one more cheque to the accused. If the amount of these three cheques referred to her cross examination conducted on 10.11.2008 is taken into consideration, the total amount would be Rs. 1.33 lakhs. The quantum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no necessary for her to pledge her gold ornaments and avail loan in order to financially help the accused. 24. Taking into consideration, the entire evidence of PW-1, it can be said that the accused is able to probablise his defence that the cheque marked as Ex. P2 was not issued for availing Rs. 4.6 lakhs and that the same was issued as security for the said sum of Rs. 1.9 lakhs availed by her. Viewed from any angle, both the Courts have not critically evaluated the evidence placed on record and they have committed serious illegality in appreciating the evidence placed on record. 25. Both the Courts have attached too much of importance to the presumption available under Sections 118 and 139 of N.I. Act without looking to the categorical admission elicited from the mouth of PW-1. These important admissions could not have been so easily brushed aside by both the Courts. In this view of the matter, point No. 1 will have to be answered in the affirmative. 26. Point No. 2: In view of the finding on point No. 1, absolute interference is called for and the judgment of conviction and sentence passed by the trial Court and affirmed by the First Appellate Court are to be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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