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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 ..... 9/2014 convicting the applicant under Section 138 of the Negotiable Instruments Act, 1881 [in brief "the Act"] and sentencing him to 1 year RI with compensation of Rs. 10,90,000.00 has been affirmed. [2] As per the allegations contained in the complaint, the applicant and the complainant were well acquainted with each other. The applicant took Rs. 10,00,000-00 as loan in cash from the complainant for his own needs, which was given by the complainant looking to the previous acquaintance with the applicant. The applicant drew a cheque of Rs. 10,00,000-00 in favour of the complainant on 10.10.2013, which was presented by the complainant for encashment in the Corporation Bank, Dhar after due date. However, the cheque was returned with remark " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant has examined himself. [7] The complainant Vijay Verma, in his affidavit has stated that he had lent Rs. 10,00,000-00 as loan to accused/applicant with whom the complainant had prior acquaintance. However, he has not written the date on which the amount was given by him to the applicant. In para 4 of cross-examination, he states that the amount was taken by the applicant in the month of February, 2013. He states that 9 months after the money was lent, he had demanded return of the money from the applicant. He states that when the money was loaned, witness Bhagwan s/o Shankarlal was present, however, this witness has not been examined by the complainant and no document regarding loan transaction has been exhibited. This matter pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the accused observing as under :- "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 that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant." [9] The facts of the case in hand are akin to that of the case of John K. Abraham (supra). The learned counsel for the applicant has referred to another citation of K. Subramani v/s K. Damodara Naidu [(2015) 1 SCC 99] in which it was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complainant suffers from following lacuna :- (i) Date of loan has not been mentioned in the complaint or in deposition of the complainant. (ii) Complainant has not been able to prove his source of funding. (iii) No document has been submitted by complainant showing deposit of Rs. 10,00,000-00 in his bank account. (iv) No document of loan transaction was executed. (v) Witness of loan transaction though available as per complainant, such witness has not been examined. (vi) No document, such as Income Tax Return etc. filed showing transaction of Rs. 10,00,000-00. (vii) Cash transaction of huge amount of Rs. 10,00,000-00 highly questionable and improbable. (viii) Applicant has not admitted drawing of cheque by him. [12] T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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