AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 1265
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....bility on the part of the accused, and hence the presumption under Section 139 and 118 of the Act are not at all available to the complainant and by the reason that the cheque contains the signature of the accused alone can not raise presumption in favour of the complainant, when the due execution of the cheque has not been proved. More than that the very issuance of cheque in favour of the complainant itself has not been proved and so, none of the presumption as completed in the act can be raised in this case. 49. Merely basing reliance on the fact that the accused admitted his signature in Ex.P.1, Cheque and in spite of receipt of legal notice, the amount has not been repaid and the same has been spoken by P.W.1, accused can not be found guilty." and finally opined that the Appellant / Complainant had failed to discharge his initial burden, and further he cannot seek any remedy under Section 138 of Negotiable Instruments Act and consequently held that the Appellant / Complainant had not proved the guilt of the Respondent / Accused beyond all reasonable doubt and acquitted him under Section 255(1) of Cr.P.C.,3. Challenging the legality and correctness of the Judgment dated 26.06....
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....xecution of cheque by the Respondent / Accused in his favour and also the fact that the cheque was issued for a 'Legally Recoverable Debt' and in the instant case, the trial court went on to observe in its Judgment that the 'Presumption' under Sections 139 and 118 of Negotiable Instruments Act were not at all available to the Appellant / Complainant etc., and rightly found that the Respondent / Accused was not guilty in respect of an offence under Section 138 of Negotiable Instruments Act, 1881 and acquitted him under Section 255(1) of Cr.P.C., which need not be displaced by this Court sitting in Appellant Jurisdiction. 11. It is seen from the contents of complaint of the Appellant (Filed under Section 138 of N.I.Act before the trial court) that the Respondent / Accused is known to the Appellant as friend for the past several years and that he borrowed a sum of Rs. 3,00,000/- from him on 25.02.2011 as 'Hand Loan' (for his Urgent Family and Business Expenses) and issued a post dated cheque on 29.03.2011 to him to Discharge the 'Legally Enforceable Debt' . 12. The clear cut stand of the Appellant / Complainant is that he deposited the cheque No.08871....
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....nt case was pending, there was a peace talk held between the Appellant / Complainant and the Respondent/ Accused and that the latter had informed that he would pay a sum of Rs. 25,000/- and would pay the balance amount in installment and that on 27.11.2011, the afore stated settlement talk was held. 17. D.W.1 (the Respondent / Accused) in his evidence (Cross-Examination) had stated that it was correct to state that Ex.P.1- Cheque was issued in his name in respect of his Bank Account and the signature in the said cheque belong to him and further that in the Police Station his uncle, Anbazhagan on his behalf gave a sum of Rs. 25,000/- for which the receipt was written in the Police Station and the case cheque was not given to the Appellant / Complainant and the cheque was given to 'Ganapathy Finance' and since he got entangled in the case, a sum of Rs. 25,000/- was given to the Appellant / Complainant towards costs and in the year 2010, he purchased a Refrigerator on monthly instalment basis from Tamirabarani Electronics and paid an initial sum of Rs. 2,500/- and he gave a cheque to Shri Ganapathy Finance at the Erode address and the Appellant / Complainant had utilised the ....
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....Notice that several criminal cases are pending against the Appellant / Complainant like the Respondent / Accused. 22. In substance in Reply Notice, Ex.P.5 dated 30.04.2011 the Respondent / Accused had taken a clear cut stand that he is after all a small trader and that he had no occasion to borrow such huge sum from the Appellant / Complainant. 23. One cannot ignore a vital fact that P.W.1(Appellant / Complainant in his cross-examination) had deposed that he does not know about the family details of the Respondent / Accused and further that he does not whether the Respondent / Accused is carrying on any other business other than Sangameswarar Dyes Business. D.W.1 ( the Respondent / Accused) in his evidence had stated that he does not know about the Appellant / Complainant as to who he is and further that he is a total stranger. Moreover P.W.1 (Appellant) in his evidence had stated that he was ready to file necessary documents to show that he was receiving an annual income of Rs. 15,00,000/- 24. In the present case, it is to be pertinently pointed out that the Respondent / Accused had taken a stand that the Appellant / Complainant had filed 30 cheques before the trial court and o....
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.... had not established that he had the necessary resources / wherewithal to lend the purported sum of Rs. 3,00,000/- to the Respondent / Accused. To put it precisely, P.W.1 (in his cross-examination) had stated that he is not an Income tax assessee. 31. A perusal of the complaint (filed by the Appellant / Complainant) before the trial court shows that the entire complaint is conspicuously silent as to the quantum of the interest agreed to be paid by the Respondent / Accused. Ordinarily, if a person lends money and that too a higher amount like Rs. 3,00,000/- then, the said amount will carry some percentage of interest, which was agreed to be paid by the Respondent / Accused. However, as stated already, the complaint is silent about any agreement for payment of interest for the loan amount of Rs. 3,00,000/-. When the Respondent / Accused is not a relative of the Appellant / Complainant and also not a close friend, then, the averment made in the complaint that the Respondent / Accused borrowed a sum of Rs. 3,22,511/- from the Appellant / Complainant does not create a favourable circumstances in his favour. 32. In a criminal case, it is the duty of the prosecution to prove the case ag....