9911796707
TMI Blog2023 (11) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'). 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are as under: The complainant is well acquainted with the accused and accused approached the complainant in the first week of February 2007 by requesting a financial assistance to the tune of Rs. 1,50,000/-. Considering the need of the accused, the complainant on 10.02.2007 advanced a hand loan of Rs. 1,50,000/- and accused promised to repay the said amount within six months. It is further asserted that on 14.08.2007, accused issued a cheque dated 14.08.2007 for Rs. 50,000/- towards par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would contend that the cheque and signature have been admitted and presumption under Section 139 of the N.I. Act is in favour of the complainant to the effect that the cheque was issued towards legally enforceable debt. He would also rely on an unreported decision of the Apex Court in Criminal Appeal Nos. 1233-1235 of 2022 (arising out of SLP (Crl.) Nos. 7430-7432/2022 @ D. No. 13470 of 2019) [P. RASIYA vs. ABDUL NAZER AND ANOTHER]. He would also assert that the loan was advanced to the tune of Rs. 1,50,000/- and the cheque was issued towards part payment to the extent of Rs. 50,000/-. Though notice was issued to the last known address, the same was not claimed and regularly the accused remained absent and it is deemed service. Hence, he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts that she has advanced a loan of Rs. 1,50,000/-. The complainant did not explain how she mobilized this huge amount of Rs. 1,50,000/. The complainant has not produced any material documents to show that she was possessing Rs. 1,50,000/- so as to advance the loan. The accused has taken the defence regarding the issuance of cheque as a security towards supply of sarees to Stri Shakthi Sangha members. No doubt, the accused has not proved his defence. However, since accused has challenged the financial status, in view of the decision reported in (2019) 5 SCC 418 [BASALINGAPPA vs. MUDIBASAPPA], the presumption under Section 139 of the N.I. Act cannot be drawn in favour of the complainant. Further, this proposition of law is reiterated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is more probable and hence, the presumption under Section 139 of the N.I. Act is not available to the complainant. 15. Further, accused is not required to prove his defence on the same standard as that of complainant by proving the same beyond all reasonable doubt. He can prove his defence only on the basis of the preponderance of probability. The view taken by the learned Magistrate in view of challenging the financial status of the complainant is a possible view and in view of the full bench decision of Apex Court in M/s. Kalamani Tex's case the view taken by the learned Magistrate cannot be disturbed. Further, when two conclusions are possible, the view favourable to the accused shall prevail. In view of these facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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