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TMI Blog2022 (7) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... arise. The presumption contained under Section 139 of the Act arises only, when the initial burden lying on the complainant to show existence of legally enforceable debt or liability, is discharged. However, the accused by adducing oral evidence and filed Ex. D.1 to D.4 documentary evidence rebutted the presumption under Section 139 of the Act. Since the accused rebutted the presumption whatever arisen by adducing oral and documentary evidence, the onus shifts again on the complainant to prove his financial capacity by adducing oral evidence, more particularly, when it is the case of giving loan by cash - In the present case, the complainant has miserably failed to discharge the burden cast on him and there is no cogent evidence to belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused took hand loan of Rs. 5.00 lakhs from the complainant on 14.06.2013 and agreed to repay the same with interest @ 24% per annum within 12 months. Inspite of several requests, the accused failed to repay the same and issued a cheque bearing No. 44056, dated 29.10.2014, drawn on Canara Bank, Ahmad Nagar Branch, Hyderabad for a sum of Rs. 6,20,000/- which includes interest. When the cheque was presented for collection in Axis Bank, Hyderabad, it was dishonoured on the ground that payment stopped by drawer and issued cheque return memo, dated 01.11.2014. The complainant got issued a legal notice dated 24.11.2014 calling upon the accused to pay the amount. The accused received the same and got issued reply notice dated 08.12.2014. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption under Section 138 of the Act, the learned trial Court ought to have convicted the accused. But the learned trial Court without properly appreciating the oral and documentary evidence dismissed the complaint. Therefore, learned counsel submitted to set aside the judgment of the learned trial Court. 8. Learned counsel for the first respondent/accused submits that the complainant failed to prove that the alleged cheque under Ex. P.1 was issued by the accused towards discharge of legally enforceable debt and as such, the learned trial Court has rightly dismissed the complaint. 9. Thus, the point that would arise for determination in this appeal is whether the acquittal of the accused for the offence punishable under Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 for the offences under Sections 420, 406, 448, 379 and 506 IPC. In order to prove the same, the accused filed Ex. D.1 certified copy of F.I.R. and Ex. D.2 copy of charge sheet and Ex. D.3 and Ex. D.4 letters addressed by him to stop payment. The accused has taken a plea that he did not vow any amount to the complainant and he has adduced oral and documentary evidence to show that a criminal case was registered against theft of cheques and the police filed case against the complainant and Mr. Mohd. Faheem. Therefore, he has addressed letter to the bank authorities to stop payment against Ex. P.1 cheque under Ex. D.3 and Ex. D.4. 12. In G.B. LINGAM v. VITTA MURALI KRISHNA MURTHY AND ANOTHER 1997(1) ALD (Crl.) 940 (AP), it was held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icularly, in the cross-examination of accused as DW. 1, he admitted that Ex. P.1 cheque was issued by him. But he gave a letter to the Manager Ex. D.3 to stop payment. He also admitted that said Mohd. Faheemuddin filed complaint against him and his brother Sathar and the same was registered as F.I.R. No. 499 of 2014 and the same is pending. Further the complainant discharges his burden that there was oral transaction and pursuant to the same, the accused borrowed Rs. 5.00 lakhs from him and agreed to repay the same with 24% per annum and issued Ex. P.1 cheque for Rs. 6,20,000/- including the interest. The presumption contained under Section 139 of the Act arises only, when the initial burden lying on the complainant to show existence of leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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