2022 (2) TMI 888

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....ed/respondent herein, whereby the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('N.I. Act' for short). 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case is that, the accused-Smt. R. Malavathi has availed hand-loan of Rs. 4,80,000/-from the complainant in the first week of December, 2015 and towards repayment of the hand loan, she issued a cheque for Rs. 4,80,000/-and when the same was presented by the complainant, it was dishonoured on 11.01.2016 for "Insufficient Funds". It is also alleged that the complainant has got....

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....arned counsel for the respondent/accused. Perused the records of the trial Court. 8. The main contention urged by the learned counsel for the appellant is that, the accused had admitted her signature on the cheque and as such, the trial Court erred in not drawing presumption in favour of the complainant under Section 139 of the N.I. Act. He would also contend that, though the financial capacity of the complainant is disputed, the evidence discloses that the complainant was a retired Police Officer and drawing pension and also an income-tax assessee and as such he is financially sound. The complainant has not led any material rebuttal evidence. Hence, he would contend that the trial Court has misread the evidence and as such, he would see....

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....to the accused in the first week of December, 2015. At the outset, it is to be noted here that the complainant has no where pleaded the specific date of advancement of the loan amount. This material pleading is missing. Further, there are no specific pleadings in the complaint as to when exactly the alleged cheque was issued to the complainant, by the accused. The complainant has no where specifically asserted the dates in this regard. The cheque is dated 08.01.2016. But, the allegations were that, in the first week of December, 2015, the loan was advanced. 11. Further, the complainant all along asserted that the said cheque was bounced on 11.01.2016 and he has issued notice on 11.02.2016. In this context, he placed reliance on Ex. P2 to....

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....s. 4,80,000/-when he said to have advanced the loan. His own admission discloses that he was possessing Rs. 2,00,000/-with him and he had secured Rs. 2,80,000/-from his son. Admittedly, his pension is Rs. 16,000/-p.m., and he is retired 10 years earlier to the alleged transaction. He has not produced any document to show that, he was possessing hard cash of Rs. 2,00,000/-. Even otherwise, there is no evidence as to what his son was doing and what is his financial status. Further, his son is also not examined to show that, he had handed-over Rs. 2,80,000/-to the complainant so as to advance loan. Hence, when the accused has disputed the financial status of the complainant to advance such a huge loan, it is incumbent on the part of the compla....

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....t to discharge the burden that he/she was financially sound to advance such a huge amount. In the instant case, the complainant has failed to substantiate the said contention. Hence, the evidence establish that the complainant was not financially sound to advance hand loan of Rs. 4,80,000/-to the accused. Further, PW. 1 in his cross-examination pleaded ignorance regarding his wife having chit business to the tune of Rs. 1,20,000/-with the accused. But, very interestingly, he did not deny this aspect. 15. As observed above, there is material alteration of the date in Ex. P2 (endorsement) and it directly has bearing on the limitation issue. Merely because the notice has been served and the accused has not replied, it cannot be a ground to ....