TaxTMI 
TaxTMI 
2021 (6) TMI 221
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.... interest at the rate of 24% per annum. In order to discharge his liability, the accused had executed a Promissory Note dated 10.06.2009 (Ex.P1) on the same day and from the date of hand loan, the accused neither paid any amount towards the interest nor paid the principal. During the month of June 2010, the complainant approached the accused and made a demand to repay the said amount with interest, whereas the accused instead of repaying the said sum, sought one more month for repayment. Thereafter, the complainant made several attempts to get back his amount and finally during the 1 st week of August, 2010, the accused had issued a cheque bearing No.230371 dated 09.08.2010 for a sum of Rs. 2,50,000/- (Ex.P2), drawn on ICICI Bank Limited, V....
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....as defence, however, he did not let in any evidence. 6.After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 05.07.2012 in C.C.No.166 of 2010 had found the accused guilty and convicted him u/s.138 of Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of one year in terms of Section 255(2) Cr.P.C. and to pay a compensation of Rs. 2,50,000/- to the complainant within a period of three months and in default of payment of the compensation, directed to undergo simple imprisonment for a period of three months u/s.357(3) Cr.P.C. Against the said conviction and sentence, the accused had filed an appeal in C.A.No.126 of 2012 and the learned Principa....
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....other documents have been furnished by the complainant to prove that the consideration has been passed. The promissory note and the cheque were not issued to discharge a legally enforceable debt and further the complainant has failed to examine the attester of the pronote. The Courts below have not properly analysed the evidence with regard to the same. 9.Per contra, learned counsel for the complainant would submit that the complainant had proved his case by letting in cogent evidence. The complainant had proved that there was legally enforceable debt by marking Ex.P1 viz. Pronote and Ex.P2 viz. post date cheque. Further, after the issuance of cheque for an amount of Rs. 2,50,000/-, the same was presented within time on 11.08.2010 and the ....
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....urisdiction, in the absence of a jurisdictional error. (emphasis supplied) 11.In this case, the accused has not denied his signature in the impugned promissory note and the post dated cheque (Ex.P1 & Ex.P2). This Court perused the cheque and other documents marked by the complainant viz. Ex.P1 to Ex.P8 and did not find any suspicious feature in it. The defence of the accused is that the impugned pronote and cheque were given to the complainant only towards security for loan advanced by one of his friends, which has been misused by the complainant. The accused received the statutory demand notice viz. Ex.P5, but did not choose to give any reply. It is the case of the accused that he had issued the impugned pronote dated 10.06.2009 (Ex.P1....
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....by registered post (Ex.P5), the certificate of posting receipt dated 27.08.2010 has been marked as Ex.P6, the Courier receipt dated 27.08.2010 has been marked as Ex.P7 and the Acknowlegement card dated 30.08.2010 has been marked as Ex.P8; the accused despite receiving the legal notice, neither replied nor repaid the cheque amount as demanded by the complainant. On the side of the accused no oral or documentary evidence were let in to prove his case. However, it is the case of the complainant that Ex.P1 to Ex.P2 were given purely for the purpose of borrowal of hand loan of Rs. 2,50,000/- by accused on 10.06.2009 and 09.08.2010, the accused had agreed to repay the same along with interest. Assuming for a moment that the accused had given a bl....
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....sputed cheque and the pronote, it is the case of the accused in defence that no consideration has been passed based on the Ex.P1 & Ex.P2 and that the complainant had not proved the passing of consideration by adducing sufficient evidence and that the complainant had also not proved that he had sufficient sources of income to lend the loan amount of Rs. 2,00,000/- as alleged in the complaint and that the attester of the pronote has not been examined. The statutory presumptions u/s.118 and 139 of N.I.Act make it clear that the burden is not on the complainant to prove his case, whereas, the burden is on the accused to prove his case. In this case, as stated above that the complainant has proved his case by letting in sufficient evidence, howe....