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of <h1>Petitioner acquitted in Section 138 case due to lack of evidence</h1> <h3>Bijender Sharma Versus Anil Sabharwal</h3> Bijender Sharma Versus Anil Sabharwal - TMI Issues Involved:1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act.2. Validity and admissibility of the loan document (Exh.PW-1/F).3. Impact of non-filing of Income Tax Returns on the credibility of the loan transaction.4. Rebuttal of presumptions under Sections 118 and 139 of the N.I Act.5. Procedural compliance under Section 313 of the Code of Criminal Procedure.Detailed Analysis:1. Legally Enforceable Debt under Section 138 of the Negotiable Instruments Act:The petitioner challenged the conviction under Section 138 of the Negotiable Instruments Act, which requires three ingredients: a legally enforceable debt, a cheque drawn for discharge of the debt, and dishonour of the cheque due to insufficiency of funds. The court emphasized that the presumption under Section 139 of the N.I Act is that the holder of the cheque received it for discharge of a debt or liability unless proven otherwise.2. Validity and Admissibility of the Loan Document (Exh.PW-1/F):The loan document (Exh.PW-1/F) was scrutinized for its vagueness and lack of clarity. The document was undated and did not specify the terms of the loan clearly. The court noted that the document did not inspire confidence and was not registered, which affected its admissibility. The petitioner argued that the document was not put to him during his statement under Section 313 of the Cr.P.C., but the court found that this did not cause any prejudice to the petitioner.3. Impact of Non-Filing of Income Tax Returns on the Credibility of the Loan Transaction:The respondent/complainant did not file Income Tax Returns for the relevant years, and the loan transaction was not reflected in any tax documents. The court observed that while non-reflection of the loan in tax returns does not per se make it unrecoverable, it raises suspicion, especially for a large amount like Rs. 50 lakhs. The lack of documentation regarding the sale of property and mortgage further weakened the complainant's case.4. Rebuttal of Presumptions under Sections 118 and 139 of the N.I Act:Sections 118 and 139 of the N.I Act create presumptions in favor of the holder of the cheque. However, these presumptions are rebuttable. The court referred to precedents like Goa Plast (P) Ltd. vs. Chico Ursula D'souza and Rangappa vs. Sri Mohan, which clarified that the holder of the cheque is presumed to have received it for discharge of a debt, but this presumption can be rebutted by the accused by raising a probable defense.5. Procedural Compliance under Section 313 of the Code of Criminal Procedure:The petitioner argued that the loan document was not put to him during his statement under Section 313, which should have been considered incriminating material. The court dismissed this argument, stating that the petitioner was not prejudiced by this omission, and the document was already part of the record.Conclusion:The court found that the complainant's case lacked credibility due to the vague and unregistered loan document, non-filing of tax returns, and absence of evidence regarding the sale and mortgage of properties. The judgment and order of the Trial Court and the Appellate Court were set aside, and the petitioner was acquitted and discharged of all liability. The applications for suspension of sentence were disposed of as infructuous.
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