9911796707
TMI Blog2022 (11) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... REME COURT] to hold that in absence of resources to advance loan, the liability qua the cheque in question can be held to be not illegally enforceable. Complainant was explicit in proving source of fund i.e. the compensation received on account of loan acquisition. Admittedly, such compensation is not amenable to the provisions of Income Tax Act, 1961 and thus there was no occassion for the complainant to prove said source by producing his income tax returns Apart from that the Appellate Court has failed to meet with the reasoning adopted by the trial Court while convicting the respondent-accused and has set aside the judgment of conviction without upsetting the findings recorded by the trial Court. No cogent reasoning has been afforded by the Appellate Court for acquitting the respondent-accused. Consequently, the impugned judgment dated 22.08.2016 cannot be sustained and is, thus, set aside - The impugned order passed by the Lower Appellate Court acquitting the respondent is set aside. The matter is remanded back to the the Appellate Court to decide the matter afresh in accordance with law, after hearing both the parties. Petition allowed. - CRR-4886-2016 - - - Dated:- 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the complainant has discharged the initial burden by placing on record the documents necessary for proceedings under section 138 NI Act. The parties are not stranger to each other, rather accused is admittedly tenant of complainant since 2003. The execution of the cheque in question is admitted. The cheque has been proved to be that of the accused. The dishonour of the cheque is proved. Accused in his statement under section 313 C.P.C has stated that he had taken a loan of Rs 1 lakh from complainant, which he has retuned. The defence of accused is that the complainant has misused his earlier cheque which was handed over to complainant security of earlier loan. Thus, the complainant is in wrongful possession of the cheque in question. If the complainant is in wrongful possession of the cheque in question, the accused could have lodged any kind of protest regarding the same. Perusal of the file shows that no such protest has ever been lodged, till date. Also, if the earlier loan was paid the accused should have taken steps to demand his cheque back, or lodged any kind of protest or at least stopped payment of the cheque through his bankers, which accused has vehemently failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is a bank officer of Allahabad Bank has stated that during the said period an amount of Rs.3.66 Lacs were withdrawn from the said account. Perusal of account statement of complainant which is Ex. CW2/A also shown that complainant is having huge credit balance much more than the loan amount, which the accused has vehemently failed to do so. Thus, the arguments of learned counsel for accused are not convincing on this point also. 4. On conviction, the judgment was assailed by the respondent-accused before the Appellate Court. Appellate Court vide impugned judgment has set aside the judgment of order of sentence passed by the trial Court and acquitted the respondent. While upsetting the judgment passed by the trial Court, Appellate Court has held that:- xx xx xx The appellant is not the relative of the complainant and as per the case of the complainant he is a tenant on his shop. The complainant further says that the said loan was interest free and the appellant was to pay it back by March, 2013. It is difficult to digest the story of the complainant that he would grant interest free loan (friendly loan) of huge amount of Rs. 14 lacs to the appellant who is only a ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken. 5. I have heard counsel for the parties and have gone through the records of the case with their able assistance. 6. Trite it is that once the signatures on the cheque leaf are admitted, presumption under Section 139 of the Act does pitch in. However, the said presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 139 of the Act was validly rebutted by the accused. 9. Appellate Court pittedly erred in relying upon 'Krishna Janardhan Bhat vs. Dattatraya G. Hedge 2008(4) SCC 54' to hold that in absence of resources to advance loan, the liability qua the cheque in question can be held to be not illegally enforceable. Complainant was explicit in proving source of fund i.e. the compensation received on account of loan acquisition. Admittedly, such compensation is not amenable to the provisions of Income Tax Act, 1961 and thus there was no occassion for the complainant to prove said source by producing his income tax returns. 10. Apart from that the Appellate Court has failed to meet with the reasoning adopted by the trial Court while convicting the respondent-accused and has set aside the judgment of conviction without upsetting the findings recorded by the trial Court. No cogent reasoning has been afforded by the Appellate Court for acquitting the respondent-accused. Consequently, the impugned judgment dated 22.08.2016 cannot be sustained and is, thus, set aside. 11. In view of the aforesaid discussion, the present petition is allowed. The impugned order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
