TaxTMI 
TaxTMI 
2020 (2) TMI 1516
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....lainant for his business. Accordingly, the complainant has advanced a sum of Rs. 14,00,000/- as loan in the month of December 2006 for his hotel business and that the accused had agreed to repay the said amount within two months. It is the case of the complainant that during first week of March, he requested the accused to repay the loan amount and accordingly on 03.04.2007 the accused issued a cheque for Rs. 14,00,000/- in favour of the complainant which is produced and marked as Ex.P-1. When the accused presented the cheque for encashment, the same came to be dishonoured on 04.04.2007 for the reasons of account closure, pursuant to which the complainant got issued a legal notice on 21.04.2007 which was duly served to the accused on 23.04.2007 and that the accused has not repaid the amount and neither he has replied to the legal notice. Hence, the complainant filed the present complaint against the accused. 4. After service of summons from the Trial Court, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. Thereafter, the parties went into trial before the learned Magistrate and the complainant....
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....ailed to see and appreciate the fact that the accused has admitted the signature on the cheque-Ex.P1 and that the Trial Court has not considered the legal presumption of Section 139 of the N.I. Act and accordingly, the learned counsel for the appellant contends that once the cheque has been admitted by the accused, it shall be presumed that the cheque is issued for discharge in whole or in part of any debt or other liability and he further contends that even as per Section 118 of the N.I. Act, there is a presumption that every instrument was made for consideration, once it has been accepted and endorsed, until the contrary is proved. So therefore, the learned counsel contends that the Trial Court has failed to appreciate the legal presumption in favour of the complainant and has erroneously held that the complainant is unable to prove the issue of legally recoverable debt beyond reasonable doubt. 10. The learned counsel for the appellant has taken me through the Exs.P-1 to P-8 and contended that Exs.P-6, 7, 8 and 9 are the documents to show that he has obtained loan from his father, friend, brother and from Co-operative Society and from that source along with the other sum of Rs....
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....complainant has not got executed any written document or agreement for having lent such a huge amount and therefore, the theory put forth by the complainant with regard to loan is not believable. The learned counsel for the accused further contends that in the absence of there being any proper genuine admitted transaction and there not being any legally recoverable debt, the Trial Court is right in coming to a conclusion that the complainant has not established the factum of legally recoverable debt and hence, the order of acquittal is justified. 16. On perusal of the judgment of the learned Magistrate, it is noticed that the oral evidence of P.Ws. 1 to 4 and on appreciating the evidence of D.W. 1 and on perusal of Exs.P-1 to P-8 has come to the conclusion that the complainant has not produced any loan related documents to substantiate the contention of having taken loan from Urban Cooperative Bank and has neither examined any officials from the Society or Cooperative Bank to prove that he has borrowed the loan of Rs. 4,00,000/- and Rs. 1,65,000/-. Further the learned Trial Judge has come to a conclusion that the amount of loan that has been received by the complainant from his ....
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....re that when the accused raises the plea that there is no transaction and he does not know the accused and places material for closure of the account, the onus shifts on the complainant to prove that he had parted with the amount as loan to the accused and that he had the financial capacity and a legally recoverable debt. 20. It is also to be noted that the complainant has not clearly and specifically stated with regard to the date of payment of the alleged loan to the accused either in his complaint or in his evidence, it is also hard to believe that after giving such a huge amount to a person, who is not so very close and the complainant being a businessman that he would part with such a huge amount without charging any interest. All these facts raise a doubt in the mind of this Court as to whether such a transaction has existed or happened. 21. The learned counsel for the appellant has relied on the following judgments: (i) K.N. Beena vs. Muniyappan and another reported in 2001 (7) Supreme 810. (ii) Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in 2008 (1) Supreme 306. (iii) Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441. 22. The learned counsel....