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TMI Blog2019 (7) TMI 1982X X X X Extracts X X X X X X X X Extracts X X X X ..... ot Rs. 5,000/- per month as salary and now he is getting Rs.8,000/- per month. He also admitted that he is not income-tax payee. Therefore, it is clear that at the time of transaction, the complainant was not having financial capacity to lending amount of Rs.2.20 Lacs to the applicant, hence, the complainant has failed to prove that he was having financial capacity to lend Rs. 2.20 lacs as loan amount to the applicant and the applicant/accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 and has raised probable defence. This Court is of the considered view that the courts' below have committed error in holding that the applicant has issued the cheque in question for discharge of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t demanded the said loan amount, then applicant issued a cheque no. 021451 dated 07/08/2013 amounting to Rs.2.0 Lacs in favour of the complainant. The said cheque was presented by the complainant for encashment but the same was return unpaid due to insufficient funds . Thereafter, the complainant served upon statutory legal notice to the applicant but the applicant did not pay the cheque amount to the complainant. 3. The trial Court after considering the evidence adduced by the parties, convicted the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo 3 months SI and also imposed compensation to be paid to the complainant to the tune of Rs.2.50 Lacs under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence. No case was taken by the applicant that complainant has no other source of income to advanced loan to the applicant. Hence, he prayed for rejection of the petition. 6. I have considered the rival contentions advanced by the learned counsel for the parties and perused the records. 7. Complainant-Pankaj Sharma (PW 1) stated in examination in chief that loan amount of Rs.2.20 Lacs was given to the applicant and for discharge of the same, the applicant issued cheque No. 021451 dated 07/08/2013 in favour of the complainant. The said cheque was presented by the complainant in his bank account for encashment, which was return unpaid on 08/08/2013 with endorsement insufficient funds . 8. In the complaint as well as in the cross- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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