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TMI Blog2019 (7) TMI 2042X X X X Extracts X X X X X X X X Extracts X X X X ..... executed any document pertaining to such huge loan transaction and neither has he examined any witness in support. The Apex Court in the citation of John K. Abraham v/s Simon C. Abraham [ 2014 (1) TMI 528 - SUPREME COURT ] considered another such case in which the complainant did not remember the date of loan transaction, the complainant had similarly states the source of fund from sale of family property but no documents pertaining to such sale had been filed and there were some other lacuna as well. The Apex Court acquitted the accused observing ' It has to be stated that in order to draw the presumption under section 118 read alaong with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant be returned to him. Applicant, if in jail, is directed to be released forthwith, if not required in any other case - The revision application stands allowed. - HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA For the Appellant : Shri Vikas Rathi, Learned Counsel For the Respondent : Shri O.P. Solanki, Learned Counsel ORDER [1] THIS order seeks to dispose of the criminal revision filed by the applicant challenging the order passed by the 3rd Additional Sessions Judge, District Dhar in Criminal Appeal No.96/2017 vide judgment dated 08.09.2017, whereby the judgment dated 12.06.2017 pronounced by the Judicial Magistrate, First Class, Dhar in Criminal Case No.1139/2014 convicting the applicant under Section 138 of the Negotiable Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant. That substantial amount of Rs. 10,00,000-00 was allegedly paid in cash, which was unreliable as the payment of the same was not reflected in the income tax return of the applicant. The judgment pronounced by the Courts below were termed as illegal, inoperative and without jurisdiction and revision application has been prayed to be allowed and the applicant has been sought to be acquitted. [5] The main question for consideration before this Court is whether the Courts below failed to consider the grounds contained in the revision application and whether the applicant deserves to be acquitted from charge under Section 138 of the Act or not? [6] The complainant has examined himself. [7] The complainant Vijay Verma, in his affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of complainant. The complainant has not been able to prove source of Rs. 10,00,000-00 for giving the same as loan to the applicant, he admits to have not executed any document pertaining to such huge loan transaction and neither has he examined any witness in support. The Apex Court in the citation of John K. Abraham v/s Simon C. Abraham [2014 (2) SCC 236] considered another such case in which the complainant did not remember the date of loan transaction, the complainant had similarly states the source of fund from sale of family property but no documents pertaining to such sale had been filed and there were some other lacuna as well. The Apex Court acquitted the accused observing as under :- It has to be stated that in order to draw the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures on the cheque. However, the complainant had failed to prove his financial capacity and acquittal on this ground was considered to be appropriate by the Apex Court. [10] The case in hand also suffers from the short comings which prompted the Apex Court in the cases referred to above for passing orders of acquittal. The accused/applicant has stated that he had not received any notice from the complainant. The complainant in para 1 of his cross-examination admits that he has not filed the acknowledgement which containing the signatures of the applicant even though registered notice was sent to the applicant. [11] Succinctly speaking, the evidence of the complainant suffers from following lacuna :- (i) Date of loan has not been mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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