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TaxTMI 
TaxTMI 
2021 (7) TMI 739
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....ssions Judge's Court by its order dated 08.09.2017, dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the trial Court dated 15.09.2015, in C.C. No. 1352/2012. Aggrieved by the said judgment, the accused has preferred this revision petition. 3. The summary of the case of the complainant in the trial Court was that the accused had borrowed from him a sum of Rs. 1,25,000/- in July 2012 promising to repay the same within a month. On the same date of availing the loan, accused had also issued a post-dated cheque bearing No. 48561, dated 06.08.2012, in favour of the complainant, drawn on Kodagu District Co-operative Central Bank Ltd., Shanivarsanthe Branch, for a sum of Rs. 1,25,000/-. The complainant presented the said cheque through his Banker for its realisation on 09.08.2012, however, the cheque came to be returned unpaid with a Banker's endorsement "funds insufficient". Thereafter, the complainant got issued a legal notice through his counsel to the accused on 23.08.2012 under Registered Post Acknowledgment Due demanding the accused to repay the cheque amount. However, the accused neither paid the cheque amount nor replied to the ....
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.... unpaid, the presumption about the existence of legally enforceable debt forms in favour of the complainant. In his support, he relied upon the following judgments of Hon'ble Apex Court: In Rangappa vs. Sri. Mohan, reported in [ (2010) 11 SCC 441], with respect to scope of Section 139 of N.I. Act, the Hon'ble Apex Court was pleased to hold that the presumption mandated by Section 139 of N.I. Act includes a presumption that there exists a legally enforceable debt or liability, however, the said presumption is rebuttable in nature. In Bir Singh vs. Mukesh Kumar, reported in [ (2019) 4 SCC 197], the same view was reiterated by the Hon'ble Apex Court by observing that Section 139 of N.I. Act raises a presumption of law that cheque duly drawn was in discharge of debt or liability. It further observed that however the presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. In Uttam Ram vs. Devinder Singh Hudan and another, reported in [ (2019) 10 SCC 287], the Hon'ble Apex Court was again pleased to reiterate that once the cheque is proved to be issued, it carries a statutory presumption of cons....
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....Court in Paragraph-8 of its judgment has observed that, whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption in favour of the complaint regarding legally enforceable debt under Section 139 of N.I. Act, onus shifts again on the complainant to prove his financial capacity by leading evidence, more particularly, when it is the case of giving loan by cash and thereafter issuance of cheque. It is keeping this principle in mind, the present case regarding the accused questioning the financial capacity of the complainant has to be analysed. 15. It is only the complainant who got himself examined in the trial Court as PW-1 and got marked the documents from Exs. P-1 to P-6. The accused neither examined any witness, including himself nor got marked any documents as exhibits from his side. The complainant as PW-1 in his cross-examination has stated that he has 5 acres of land and that he is an agriculturist. He has also got own house in a place called Shanivarasanthe Town. He would incur the expenses of Rs. 2 lakhs for the education of his son, who is studying in B.E. He incurs a house expenditure of Rs....
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....nd in his evidence. Secondly, the complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the said loan of Rs. 1,25,000/- was given to the accused in cash. However, in his cross-examination after saying that generally he carries monetary transaction of higher value through cheque, also has stated that, even to the accused, he has given the loan through cheque. Thus, he has once again made a material variation regarding mode of payment of the loan amount from the version he has taken in his complaint and in his examination-in-chief as PW-1 to that of his statement made in the cross-examination. The complainant claims himself to be an Ex-Serviceman, having served in the Army for about eighteen years. Such a person who claims to have served in a most disciplined establishment and expected to be very specific, accurate and disciplined in several of the aspects, himself has shown that he is not clear or specific about the date of the alleged loan transaction and the mode of the alleged payment of the loan amount. These two aspects i.e., the date of the alleged loan and the mode of the payment of the loan matters a lot in a proceeding for the offen....