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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 ..... gotiable Instruments Act, 1881 and he has been sentenced to undergo 3 months SI and he is also directed to pay compensation of Rs.2.50 lacs to the respondent/complainant under Section 357(3) of the Cr.P.C. 2. Brief facts of the case are that respondent/complainant filed a private complaint against the applicant for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 alleging that the applicant for his personal need had required a sum of Rs.2.20 Lacs, which he demanded from the complainant. On 15/05/2013, complainant has paid the aforesaid amount before the witnesses and on the same date an agreement was also executed on a Rs.100/- stamp paper, in which it was agreed between them that the said amount i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the financial capacity of the complainant and without there being any proof of financial capacity, the courts below erred in convicting the applicant for the alleged offence. Learned counsel for the applicant placed reliance in the judgment of Hon'ble apex Court in the case of Dilip S. Dhanukar Vs. Kotak Mahindra Co. Ltd.,(2007) 6 SCC 528. 5. On the other hand, learned counsel for the respondent/complainant refuting the submissions of the learned counsel for the applicant contends that signature on the cheque having been admitted by the applicant, thus, a presumption has rightly been raised that cheque was given in discharge of a debt of liability. The applicant has not been able to prove any probable defence and the courts below ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lacs to the applicant. According to the complainant, he is working a recovery agent in State Bank of India. In his cross-examination, he accepted that he got 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. 10. On the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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