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TMI Blog2023 (11) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that the accused inspite of non-issuance of reply notice can raise a defence of financial status by leading cogent evidence, on the basis of cross-examination of complainant or pleadings made in the complaint itself. In the instant case, the complainant nowhere asserted that she mobilized such a huge amount of Rs. 1,50,000/- in 2007. As rightly observed by the trial Court she has not even examined her husband to prove the financial status of her husband or the financial assistance made by her husband. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 part payment of the debt. When the said cheque was presented, it was dishonored for 'insufficient funds'. Hence, legal notice came to be issued and inspite of knowledge, the accused failed to repay the cheque amount. Hence, compliant came to be lodged. 4. The learned Magistrate has taken cognizance of the offence and issued a process against the accused. The ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 430-7432/2022 @ 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 would contend that the trial Court has failed to appreciate any of these aspects and has erroneously acquitted the accused, which has resulted in miscarriage of justice. As such, he would seek for allowing the appeal. 10. Having heard the arguments and perusing the records, now the following point would arise for my consideration: Whether the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Apex Court in (2019) 10 SCC 287 [UTTAM RAM vs. DEVINDER SINGH UDAN AND ANOTHER]. In the decision reported in (2021) 5 SCC 283 [KALAMANI TEX AND ANOTHER vs. P.BALASUBRAMANIAN], the Full Bench of the Apex Court has observed that the High Court should have compelling reasons to tinker with the order of acquittal and no such interference would be war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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 circumstances, the question of interfering with the judgment of acquittal passed by the learned Magistrate does not arise at all. As such, the point under consideration is answered in the negative. In view of the same, the appeal being devoid of any merits, does not survive for consideration and accordingly, I proceed to pass the following : ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X
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