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TMI Blog2023 (11) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... contending that he and accused are well known to each other. On 11.07.2017, accused for the purpose of repaying loan taken for construction of his house requested for loan of Rs. 5 lakhs. Complainant agreed for the same and on the same day advanced loan of Rs. 5 lakhs. In this regard accused executed a demand Promissory Note-cum-Consideration Receipt, agreeing to repay the same with interest at 2% p.a. 3.1. On the next day that is on 12.07.2017, accused issued a cheque for Rs. 5 lakhs with a direction to present it on 18.09.2017. Accordingly on 18.09.2017, complainant presented it through Corporation Bank, Arasikere branch. However, it was dishonoured on the ground "Funds insufficient". The complainant brought this fact to the notice of the accused. He did not make any arrangement for paying the amount due. Therefore, on 22.09.2017, complainant got issued a legal notice to the accused calling upon him to pay the amount due. Despite due service of the notice, the accused has neither chosen to pay the amount nor sent any reply. Without any alternative complaint is filed. 4. Accused appeared before the trial Court and contested the matter. Though he admits that the cheque in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the complainant has failed to prove passing of consideration, still it has proceeded to convict the accused. The Sessions Court has also failed to appreciate the evidence placed on record in the right perspective and simply proceeded to confirm the trial Court order and prays to allow the petition, set aside the impugned judgments and orders and acquit the accused. 12. On the other hand, learned counsel for complainant has supported the impugned judgments and orders and sought for dismissal of the revision petition. 13. Heard arguments of both sides and perused on record. 14. Thus, it is the definite case of the complainant that having known the accused since long, at his request on 11.07.2017, he has advanced loan of Rs. 5 lakhs and on the same day accused executed a demand Promissory Note-cum-Consideration receipt in the presence of witnesses and on the next day i.e., on 12.07.2017, accused issued the subject cheque towards the payment of the said loan with the direction to present it on 18.09.2017. Accordingly on 18.09.2017, when complainant presented the cheque for encashment, it was dishonoured for "Funds insufficient" and after issuing legal notice he has filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, during the course of trial, he has taken up such defence, contending that he has not borrowed any loan from the complainant and in fact complainant he had no financial capacity to lend him such a huge sum of Rs. 5 lakhs. In the light of specific case of the complainant and the defence of accused, it is necessary to examine whether the accused has rebutted the presumption and in that event whether the complainant has discharged the burden shifted on him. 18. As held by the Hon'ble Supreme Court in Tedhi Singh Vs. Narayan Dass Mahant (Tedhi Singh) (2022) 6 SCC 753, when the accused has failed to send reply to the legal notice, challenging the financial capacity of the complainant, at first instance, complainant need not prove his financial capacity. However, if during the course of trial accused takes up such defence, then it is necessary for the complainant to prove his financial capacity when he allegedly advanced the amount and towards repayment of it, the accused has issued a cheque. Keeping in mind ratio in the above said decision, it is necessary to examine whether the accused has made out justifiable grounds to interfere with the impugned judgments and orders. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the fact that during the trial, accused has challenged the financial capacity of the complainant, he is expected to prove the same and the evidence to that effect should be acceptable and reliable. Since the accused has taken up a specific contention that the cheque was issued long back to the son of complainant, it appears only to create evidence, the complainant has made certain credits to his account in order to use them to prove his financial capacity. 22. Had he produced some evidence to show that he is having agricultural land, raises vegetables and coconut and was in receipt of Rs. 4 lakhs as detailed in Ex.P7 immediately prior to 11.07.2017 and including certain cash available with him, he lent it to the accused things would be different. When the complainant has chosen to get a demand Promissory Note-cum-Consideration Receipt and has also chosen to receive a cheque from the accused towards repayment of the loan, nothing prevented him from paying the said loan by way of cheque or demand draft which would have secured his interest, especially when he is operating an account and is in the habit of promptly crediting his receipts into his account. 23. It is pertine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at for purchasing house, he took loan from the Bank and a number of complaints were filed against him for dishonour of cheques issued by him, the same would not improve the case of the complainant. It appears taking advantage of the necessity of accused, blank cheques having been taken from him and utilising one such cheque, the present complaint is filed. In the light of the cross-examination of the complainant and also through his testimony, the accused has rebutted the presumption shifting the burden on the complainant. However the complainant has failed to prove that at the relevant point of time he had the financial capacity to lend Rs. 5 lakhs to the accused and the cheque in question was issued by the accused towards repayment of the said loan. 27. Though the demand Promissory Note state and also it is pleaded by the complainant that accused had agreed to repay the said sum along with interest at 2% p.m., there is no explanation for not making any attempts to recover the interest. Both trial Court as well as the Sessions Court has failed to appreciate the oral and documentary evidence placed on record by the complainant in the light of specific defence taken by the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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