2017 (11) TMI 1113

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....ted accused is the appellant herein.  3. The accused has borrowed a sum of Rs. 4,65,000/- on 30.07.2008 from the complainant and he promised him that he will repay the amount within one month. On the same day the accused had issued a cheque bearing No.904025, dated 21.08.2008 drawn on State Bank of Hyderabad, P.N.Pudur Branch, Coimbatore in favour of the complainant for the aforesaid amount  Rs. 4,65,000/- The complainant issued a lawyer's notice on 27.08.2008 to the accused by RPAD, demanding him to pay the amount covered under dishonoured cheque within 15 days time from the date of receipt of the notice and its receipt was duly acknowledged by the accused on 28.08.2008. But, he did not come forward to repay the amount nor....

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....complainant under Sections 108 and 139 of N.I.Act. The complainant has no financial capacity to deal with a huge sum of Rs. 4,65,000/-. This mere defence put by the accused would not rebut the presumptions existing in favour of the complainant. Absolutely, there is no material placed by the accused to rebut the presumption or to substantiate the incapacity of the complainant and found that the accused is a guilty under Section 138 of Negotiable Instrument Act and convicted and sentence undergo for Simple Imprisonment for one year and a fine of Rs. 5,000/- in default to undergo Simple Imprisonment for one month. 6. Aggrieved against the said judgment, the convicted accused has preferred the appeal and on re-appreciation of evidence, the l....

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....n such case and it can be either direct or by bringing on record preponderance of probabilities by reference to circumstances upon which he relies and Court may not insist upon direct evidence to prove non-existence of consideration as negative evidence is not possible and Drawer of cheque disproved existence of consideration by letting in circumstantial evidence and by examining witnesses besides examining herself to prove that Payee of cheque did not have wherewithal to have lent any sum to drawer of cheque". 8.  With the above decision in mine let us examine the evidence adduced before the trial Court. The complainant examined himself as P.W.1 and marked Exhibits P1 to P4. As rightly pointed out by the learned counsel for the res....