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TMI Blog2022 (3) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... t itself made out the case of such premature recalling of the loan to the accused. It was not the defence of the accused that the he had paid installments which had fallen due. On admitting the cheque, the accused has to probabilise the defence and to establish that. It was not the case of the accused that he had paid the installments which had fallen due, therefore there was no reason to recall the entire loan. Therefore the findings of the trial Court regarding the accused probabilizing his defence on such ground are unsustainable. Therefore it can be held that this Court is not totally barred from receiving such documents at the Appellate stage if the Appellate Court finds additional evidence to be necessary. Section 391 of Cr.P.C. authorizes the Appellate Court on recording its reasons either to take such evidence itself or direct the learned Magistrate to take such evidence. 30 The loan borrowed in the case is huge amount of Rs.50,00,000/-. The complainant is a public institution where the money of the public is at stake. The records show that the accused having borrowed the money, obstructed the complainant s officials when they sought to recover the same, thereby driving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or short). 6. The accused replied to the said notice as per Ex.P6 dated 06.02.2016 denying the transaction, liability or issuance of the cheque. Therefore the complainant filed the complaint as per Ex.P7 before the trial Court seeking prosecution of the accused for the offence punishable under Section 138 of the Act. 7. On taking cognizance, the trial Court registered the said case in C.C.No.5665/2016, summoned the accused and conducted the trial. After such trial, on hearing the parties, the trial Court by the impugned order acquitted the accused on the following grounds: (i) Issuance of the cheque and the loan transaction were proved; (ii) That loan was a term loan payable from 2014 till 2024. The loan had not become overdue. (iii) The cheque was issued as security for repayment of loan; (iv) When the cheque was presented the loan had not become due for payment. Therefore it cannot be said that there was legally enforceable debt as on that date. (v) The accused has rebutted the presumption under Sections 118 139 of the Act and the complainant failed to discharge reverse burden; (vi) The complainant is a company. The complainant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. In support of his submissions, he relies on the following judgments: 1. Mr. N. Srinivasa Murthy Ors. v. State of Karnataka Anr. [Crl.P.No.2314/2016 DD 06.02.2019] 2. APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers [AIR 2021 SC 2814] 3. Sripati Singh v. The State Of Jharkhand [2021 SCC Online SC 1002] 4. D. K. Chandel v. M/s. Wockhardt Ltd. [Crl.A.No.132/2020 DD 20.01.2020] 5. Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197] 6. Uttam Ram v. Devinder Singh Hudan [2019 (2) Kar. L.R 717 (SC)] Submissions of Sri G.V. Dayananda, learned Counsel for the respondent/accused supporting the impugned judgment and order: 13. The complainant has failed to prove the transaction by adducing credible evidence. The complainant has misused the cheque issued by the accused in connection with loan transaction for the year 2000, though the said loan was discharged. Admission of PW.1 in the cross-examination shows that the alleged loan transaction of Rs.50,00,000/- was false. As rightly held by the trial Court, the accused rebutted the presumption. Thereafter the complainant did not discharge reverse burden to prove the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. 16. In the light of the aforesaid legal propositions, it has to be examined whether the accused rebutted the presumption and the complainant discharged the reverse onus. 17. In the complaint, statutory notice and in the evidence of PW.1, it was stated that the accused borrowed property loan of Rs.50,00,000/- in April 2014 in the loan account Nos.19/2014 and 25/2014 and committed default in repayment. It was further alleged that towards discharge of that loan, in 2016 he issued cheque Ex.P2. 18. The accused did not deny his signature on the cheque or that the cheque pertains to his account. His contention was that he had borrowed loan in 2000 and in that transaction as security he had issued Ex.P2 and the same loan was cleared in 2012. He further alleged that the complainant without returning the said cheque, misusing the same has filed false complaint. He denied the loan transaction or borrowing loan of Rs.50,00,000/-. 19. The evidence on record sufficiently shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims that the accused committed default in payment of the loan. It was not the case of the accused himself that the loan was prematurely recalled or that was not due as on the date of the issuance of the cheque or presentation of the cheque as the case was denial of availment of loan itself. However, the Court itself made out the case of such premature recalling of the loan to the accused. It was not the defence of the accused that the he had paid installments which had fallen due. On admitting the cheque, the accused has to probabilise the defence and to establish that. It was not the case of the accused that he had paid the installments which had fallen due, therefore there was no reason to recall the entire loan. Therefore the findings of the trial Court regarding the accused probabilizing his defence on such ground are unsustainable. 25. Similarly observations of the trial Court that the complainant has failed to prove that there was onetime settlement was also extraneous as it was nobody s case. 26. Then the only point that remains for consideration is whether acquittal of the accused on the ground of proof of authorization of PW.1 to file the complaint and to give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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