TaxTMI 
TaxTMI 
2019 (3) TMI 843
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....of the offence under Section 138 of the Negotiable Instruments Act. 3. Complaint was filed by the petitioner herein contending that a friendly loan of Rs. 4,90,000/- was given to the respondent as they had good relations and in discharge thereof the respondent had issued the subject cheque dated 03.11.2009 for Rs. 4,90,000/-. When the cheque was presented, it was returned unpaid for the reasons 'insufficient funds'. 4. Trial Court by the judgment dated 23.09.2013 held that the issuance of the cheque was not in dispute and despite services of legal notice payment was not made by the respondent. Trial Court was of the view that the evidence on record was not supportive of the innocence of the accused. Trial Court negated the defence of the ....
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....ievable that petitioner would arrange a huge sum of Rs. 4,90,000/- when his monthly income was only Rs. 15,000/- per month to advance as a friendly loan to the respondent. 8. Appellate Court has also noticed that the petitioner has failed to show or aver as to when the alleged loan of Rs. 4,90,000/- was given to the respondent and demanded back. 9. The appellate court, with regard to the defence of the respondent that he had transaction with Mr. Subhash Aggarwal employer of the petitioner, held as under: - "8. It is the case of the appellant that he had some transactions with Subhash Aggarwal, who is owner of Shagun Jewellers and he had given some blank cheques to Subhash Aggarwal. To prove this fact the appellant has examined Sh. Om Pra....
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....t and he had dealing with Subhash Aggarwal. I am of the view that appellant was able to rebut the presumption u/s. 118 of N.I. Act. 9. Ld. MM has held that testimony of DW-1 and DW2 are hear say and the same are not admissible. DW-1 categorically stated that he used to accompany the appellant to the showroom of Subhash Aggarwal and whichever there was shortage of money appellant used to give him cheques. I am of the view that testimony of DW1 is not hearsay, as he had visited the showroom of Subhash Aggarwal. No suggestion was given to this witness that he had not visited the showroom of Subhash Aggarwal with appellant. 10. The Ld. MM has also held that no complaint was given by the accused/appellant so his defence cannot be taken into co....
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....hus, in view of not denial by the complainant that Subhash Aggarwal has also filed another criminal complaint against the appellant, I am of the view that appellant is able to rebut the presumption under Section 118 NI Act. 11. The complainant admitted that the appellant only knows how to sign. He also admitted that he did not know whether the appellant has signed in English or Hindi. I am of the view if the cheque was given as security by the appellant then the complainant must be aware as to whether the appellant has signed the same in English or in Hindi. 12. The Id. MM has also held in the judgment that the accused is only required to show the existence of a probable defence so as to rebut the above presumptions. If the accused succee....
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....ques. Appellate Court has also found that respondent had given complaints against Subhash Aggarwal to the appellant, however, no action was taken. The Appellate Court also found that Subhash Aggarwal had also initiated proceedings under Section 138 of the N.I. Act against the respondent and the cheque had been given as a security cheque. 11. As noticed above, the Appellate Court has held that respondent has been able to rebut the presumption that arises under Section 118 of the N.I. Act. Petitioner has thereafter failed to prove beyond reasonable doubt that he had given the loan to the respondent and the cheque was issued for repayment of the said loan. 12. Finding of the Appellate Court that the petitioner has not shown the source of fun....