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TMI Blog2024 (1) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Prabhakar, the complainant has replied that Prabhakar is not ready to come and give evidence. Though the complainant has claimed that the amount of Rs.3.5 lakhs paid to the accused was withdrawn from his account, standing in Corporation Bank and there is no difficulty for him to produce the same. However, the complainant has not produced his account extract to evidence the said fact. It would have been sufficient for the complainant to produce the said account extract to establish Rs.3.5 lakhs paid to the accused was withdrawn by him from his account. Thus, the complainant has failed to prove his financial capacity, despite making a vain attempt to prove that a vehicle was sold for Rs.4,80,000/- and out of the said amount, he lent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Sri. N. Udaya Kumar, Advocate. ORDER This petition filed under section 397(1) r/w 401 Cr.P.C is by the accused, challenging his conviction and sentence for the offence punishable and Section 138 of the N.I Act imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him. 2. For the sake of convenience, the parties are referred to by their rank before they trial Court. 3. Complainant filed a private complaint against the accused alleging that he and accused are known to each other since several years. Accused approached the complainant for financial assistance as he was facing financial difficulties. In this regard complainant paid Rs.3.5 lakhs to the accused by way of hand l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the trial Court. 10. Being aggrieved by the same, the accused is before the Court contending that the impugned judgments and orders suffers from arbitrariness besides being perverse. In his reply notice, the accused has clearly stated that he never borrowed any loan from the complainant and on the other hand while borrowing loan of Rs.1,05,000/- from one Rajeev Reddy, he had issued blank cheque and though the accused repaid the said amount, the cheque was not returned and misusing the same, the complaint is filed. The accused has disputed the financial capacity of the complainant. However, complainant has failed to prove that immediately prior to the alleged advancing of loan to the accused, he was having financial capacity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present complaint is filed. 15. Having regard to the fact that the accused has disputed his acquaintance with the complainant and also the transaction as well as the financial capacity of complainant to advance huge sum of Rs.3.5 lakhs, as held by the Hon ble Supreme Court in APS Forex vs Shakti International Fashion Linkers Pvt. Ltd (APS Forex) [(2020) 12 SCC 724], whenever accused rises issue of financial capacity of complainant, in support of his probable defence, despite presumption in favour of the complainant regarding legally enforceable debt under Section 139 of N.I. Act, onus shifts again on the complainant to prove his financial capacity by leading evidence, more particularly when it is a case of giving loan by cash and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused has also disputed that complainant was owning the said vehicle. At least the complainant would have produced Registration certificate of the said vehicle to prove that his wife was owning the said vehicle and after transfer it is standing in the name of purchaser. Though the complainant has claimed that the amount of Rs.3.5 lakhs paid to the accused was withdrawn from his account, standing in Corporation Bank and there is no difficulty for him to produce the same. However, the complainant has not produced his account extract to evidence the said fact. It would have been sufficient for the complainant to produce the said account extract to establish Rs.3.5 lakhs paid to the accused was withdrawn by him from his account. Thus, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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