TaxTMI 
TaxTMI 
2019 (8) TMI 1719
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed a loan of Rs. 1,00,000/- from the complainant in the month of April, 2008 and to discharge the said loan, the accused had issued a cheque (Ex. P2) dated 20.10.2008 for a sum of Rs. 1,00,000/- in favour of the complainant. When the cheque has been presented in the bank of the complainant, the said cheque came to be dishonoured with an endorsement (Ex. P3) as 'insufficient funds'. The complainant got issued Legal Notice to the accused through RPAD as well as Under Certificate Of Posting (UCP). The same was served on the accused. The accused neither repaid the loan amount nor gave any reply. Hence the complainant filed a complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C., for short), before the 16th Addl. Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as 'the trial Court', for short) in C.C. No. 1375/2009. After taking cognizance, learned Magistrate registered a criminal case against the accused and he has been summoned to appear before the Court. The accused pleaded not guilty and claimed to be tried. The complainant got himself examined as PW1 and got marked in all seven documents.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amount. But the same was disbelieved by the first Appellate Court, which is not correct. The presumption available in favour of the appellant has not been rebutted by the accused by entering into witness box. Merely because there are no documents obtained by the complainant other than the cheque, that is not a ground to dismiss the complaint. Therefore, he prayed for setting aside the judgment of the first Appellate Court and prayed for confirming the judgment of conviction and sentence passed by the trial Court. 6. Per contra, learned counsel for the accused-respondent supported the judgment of acquittal passed by the first Appellate Court and contended that the presumption has been rebutted by way of cross-examination and the accused need not enter into witness box for rebutting the presumption. When the complainant himself is not having capacity or any source of income to lend such a huge amount to the accused and he himself was an auto driver earning Rs. 350/- to Rs. 400/- per day, out of which he has to pay Rs. 150/- per day to the owner of the Auto Rickshaw and he himself was unable to purchase an auto rickshaw, the question of paying Rs. 1,00,000/- to the accused is not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 21.10.2008. He got issued the Legal Notice on 04.11.2008. The same was served on the accused. The accused neither replied to the notice nor repaid the amount. Hence he has filed the complaint. The same is reiterated by the complainant by examining himself as PW1. 9. The complainant has got marked seven documents in support of his case. Ex. P1 is the complaint. Ex. P2 is the cheque. Ex. P3 is the Bank Endorsement. Ex. P4 is the copy of Legal Notice. Ex. P5 is the Postal Receipt. Ex. P6 is the Under Certificate of Posting acknowledgement. Ex. P7 is the Postal Acknowledgment for having receipt of notice by the accused. The complainant reiterated the averments made in the complaint by examining himself as PW1. Admittedly, except cross-examining PW1 - complainant, the accused has not let in any evidence by entering the witness box and he has also not replied to the Legal Notice in spite of service of the Legal Notice. However, in the cross-examination, the complainant has stated that the accused is his neighbor and they were known to each other for last 10-12 years prior to the transaction and has stated that he is the auto driver and income tax assessee. But he has not declared h....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... hand, he could have purchased his own auto and he might not have gone to run the auto rickshaw on rent. Apart from that, he has not obtained any receipt or acknowledgement while paying the loan amount to the accused. Even he has stated that he has not charged any interest on the loan amount which is not believable. There is no averment made in the complaint that the accused approached him for the purpose of producing any cinema. He has only stated that he lent hand loan. There is no document forthcoming from the side of the complainant to show that he had source of income and capacity to lend Rs. 1,00,000/- to the accused and he being the income tax assessee, not declared the said income to the Income Tax Authority and no documents were produced in the Court. Apart from that, he has not produced any document to show that he had cash in his possession to lend the same to the accused. Therefore, the contention of the complainant that the accused borrowed the amount and he was unable to pay the amount is not acceptable. 11. Apart from that, in the cross-examination, the complainant has stated the accused gave cheque in November, 2008, but whereas, the cheque date is October 2008. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that there exists a legally enforceable debt or liability and that is a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. 13. In the case on hand, though the presumption under Section 118 R/w. Section 139 of the Negotiable Instruments Act exists in favour of the complainant, however, the accused is required to rebut the presumption available in favour of the complainant. The accused need not enter into witness box by letting evidence, but he can rebut the evidence of the complainant in the cross-examination. In this case, the accused is disproved the evidence of PW1 in respect of the existence of presumption in favour of the appellant/complainant and legally recoverable debt payable by the accused. 14. Therefore, when the accused/complainant himself is unable to show the source of income and capacity to pay and date of issuance of cheque throw suspicion and cloud in the evidence of the complainant. It is not possible to accept the evidence of the complainant that there is any legally recoverable debt payable by the accused and he had issued the cheque to discharge the amo....