TaxTMI 
TaxTMI 
2021 (9) TMI 40
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....ppeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge's Court in its order dated 27-12-2012 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 14-05-2012 in C.C.No.541/2008. Aggrieved by both the judgments passed by the Trial Court as well the learned Sessions Judges Court, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court was that, the accused was known to him for the previous ten years to the date of the complaint and both of them were friends. The accused availed a loan of a sum of Rs. 3,00,000/- from the complainant by cash in the month of April-2006 for his business commitments. The accused had promised to repay the said loan amount within six months from the date of availment of loan, however, he failed to repay the same. It is also the case of the complainant that, after persuasion, the accused issued a cheque bearing No.005507 dated 28-05-2008, for a sum of Rs. 3,00,000/- drawn on the Corporation Bank, Araga Branch, Thirthahalli Taluk, towards the repayment of loan amount. When the complainan....
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....dishonour of the cheque, the complainant got issued a legal notice dated 25-06-2008 to the accused, demanding the payment of the cheque amount, as could be seen from a copy of the said legal notice at Exhibit P-3. The postal acknowledgement card and the Certificate of Posting, though are produced by the complainant, who got himself examined as PW-1 at Exhibits P-4, and P-5, however, the accused himself has admitted the receipt of the said legal notice for which, he has sent his reply as per Exhibit P-6. These aspects prima facie forms a presumption about the existence of a legally enforceable debt in favour of the complainant under Section 139 of the N.I. Act, however, the said presumption is rebuttable. 10. In order to rebut the presumption formed in favour of the complainant, it is not mandatory that the accused should necessarily lead his evidence or produce any document from his side, unless the situation warrants him to do so. Otherwise, the accused can make out his case on preponderance of probabilities, thus to make the case of the complainant a suspicious one. Once the said presumption stands rebutted, the burden of proving the existence of a legally enforceable debt wou....
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.... sum of Rs. 50,000/- and also about he delivering the cheque in question as a security to the complainant. Thus, when a defence is taken up by the accused to rebut the presumption formed in favour of the complainant, the accused is required to establish the said defence, at least to the extent of making out a case on preponderance of probabilities. In the instant case, though the accused has taken a defence, by himself saying that, except a reply statement, there is nothing on record to show that, he had given the cheque to the complainant towards an alleged previous loan of the Year 2006, but it is hard to believe that the cheque at Exhibit P-1 was given by the accused as contended by him as a security to the complainant in the year 2006. 13. The above observations also gains support from the fact that, admittedly, the accused, except for the first time, coming with the plea of defence through his reply to the notice under Exhibit P-6, which is after June-2008, has admittedly not taken any steps to recover the alleged security cheque from the complainant at the earliest point of time. Incidentally, the accused also has not given any further details as to on which specific date ....
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....cheque in question as a security to the complainant towards an earlier loan transaction in the year 2006, does not gain support to believe the same. 15. Learned counsel for the petitioner/accused also canvassed a point that, when the complainant claims to have given a loan of a huge amount of Rs. 3,00,000/- to the accused, who is a Tin Maker, it is hard to believe the same. He also contends that, for such a huge transaction, the complainant ought to have retained or secured some paper or some documentation. 16. So far as the avocation of the accused is concerned, PW-1 in his cross-examination has stated that, the accused is a dealer in spare parts. The said contention has not been denied from the accused's side. Further, he has admitted a suggestion as true that the name of the shop of the accused is M/s. Ravi Tin Maker. Added to that, the complainant has also stated in his evidence that, the accused was the owner of a Bus. In addition to the same, the accused as DW-1, by himself, in his examination-in-chief has stated that, as on the date of his evidence, he is working as a Tin Maker. However, in his cross- examination, he has stated that, in the year 2003, he was runnin....