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TMI Blog2024 (5) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... 013. As noted earlier, the subject cheque i.e., Ex.P1 is dated 10.01.2013 which creates doubt as to whether Ex.P1 cheque was issued towards alleged transaction or it was already available with the complainant. This fact assumes importance as the accused has taken up a specific defence that complainant, Smt.Kalavathi - the wife of accused and other women were running chit fund and at that time complainant had taken a blank cheque belonging to the accused and though the wife of accused has paid the amount due under the chit transaction, the subject cheque belonging to the accused remained with the complainant and misusing the same, she has filed the complaint. Ex.D1 is the pass book of account maintained by Smt.Kalavathi in Syndicate Bank. It shows withdrawal of Rs.20,000/- on 27.08.2012 and Rs.45,000/- on 25.09.2012 by Smt.Geetha H.K i.e., the complainant. This supports the defence of the accused that there were some chit transaction between his wife Smt.Kalavathi and complainant Smt.Geetha H.K. The contents of Ex.P1 cheque also supports the defence of the accused that except his signature, the rest of the contents are not in his handwriting. From the manner in which the accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout any alternative complaint is filed. 4. After due service of summons, accused appeared before the trial Court and contested the case by pleading not guilty. 5. In order to prove the allegations against the accused, complainant got herself examined as PW-1 and relied upon Ex.P1 to 7. 6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant. 7. Accused has examined himself as DW-1 and relied upon Ex.D1. 8. Vide the impugned judgment and order the trial Court has dismissed the complaint. 9. Being aggrieved by the same, complainant is before this Court, contending that the impugned judgment and order is illegal, invalid, erroneous and contrary to the law and evidence on record. The trial Court has committed serious error in not appreciating the evidence placed on record in proper perspective. There is no application of mind to the provisions of Section 138 of N.I Act, especially when the accused has not specifically denied the transaction. When the accused has failed to rebut the presumption, the trial Court has committed grave error in dismissing the complaint and pray to allow the appeal, convict the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den lies on the complainant to show that: (i) She had the requisite funds for advancing the sum of money/loan in question to accused. (ii) The issuance of cheque by accused in support of repayment of money advanced was true and (iii) The accused was bound to make payment as had been agreed while issuing cheque in favour of the complainant. 17. As held by the Hon'ble Supreme Court in Tedhi Singh Vs Narayan Das Mahant (Tedhi Singh) 2022 SCC OnLine SC 302 , where the accused has failed to send reply to the legal notice, challenging the financial capacity of the complainant, at the first instance, complainant need not prove his financial capacity. However, at the trial if the financial capacity of complainant is challenged, then it is for the complainant to prove the same. As noted earlier in the present case though the accused has sent reply, therein he has not challenged the financial capacity of complainant, but at trial he has challenged their financial capacity. 18. In APS Forex vs Shakti International Fashion Linkers Pvt. Ltd (APS Forex) (2020) 12 SCC 724 , the Hon'ble Supreme Court held that when accused raises issue of financial capacity of complainant, in support of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash which was given to the accused was available in her house and it was given to her by her brother-in-law out of sale proceeds of coffee. When suggested that the coffee sale would be held in the end of December, PW-1 has stated that it was the produce of previous year. Admittedly, complainant has not produced any documents to show that the produce of previous year was kept in consignment and also it was sold immediately prior to the alleged lending of Rs.6 lakhs and complainant was in possession of the same. Thus, the complainant has failed to prove her financial capacity to lend Rs.6 lakhs to the accused. 23. In the complaint the complainant has not stated the date on which the hand loan was advanced to the accused. It is only stated that towards repayment of the said amount, accused issued cheque dated 10.01.2013. However, during her cross-examination complainant has stated that accused requested hand loan in the month of November 2013 and she paid the amount on 15.12.2013. As noted earlier, the subject cheque i.e., Ex.P1 is dated 10.01.2013 which creates doubt as to whether Ex.P1 cheque was issued towards alleged transaction or it was already available with the complainant. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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