TaxTMI 
TaxTMI 
2022 (9) TMI 610
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....138 of the Negotiable Instruments Act, 1881 ('N.I. Act' for shot). 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 are that, in the month of June 2005, the accused had approached the complainant for hand-loan of Rs. 1,35,000/- for his Lathe business by promising to repay the same by 30.11.2005; that the complainant had advanced the hand-loan as sought by the accused and the accused has failed to keep-up his promise. On demand by the complainant for repayment of loan amount, the accused has issued a cheque dated 10.12.2005 for a sum of Rs. 1,35,000/- drawn on Federal Bank Limited, Rajajinagar, in favo....
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....prosecution. The accused denied the same and got examined himself as DW. 1 and also got marked Exs. D1 to D3. 6. After perusing the evidence on record and after hearing the arguments, the learned Magistrate has observed that the complainant has failed to prove that the cheque was issued towards legally enforceable debt and hence, he has acquitted the accused of the offence under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal. 7. Heard the arguments advanced by the learned counsel for the appellant/complainant and perused the records. 8. Learned counsel for the appellant/complainant would contend that the accused has admitted his signature on the cheque and admittedl....
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.... the cheque belongs to the accused. Further, the accused has also no disputed his signature on the cheque. Hence, prima facie there is a statutory presumption in favour of the complainant under Sections 118 and 139 of the N.I. Act. However, the said presumptions are rebuttable presumptions. Apart from that, it is also important to note here that the complainant is required to prove his case beyond all reasonable doubt. But, however, the accused is not required to prove his defence on the same principle of beyond all reasonable doubt. But, he is required to prove his defence on the basis of preponderance of probabilities. If the accused is able to create some dent in the case of the complainant, then the statutory presumption stands rebutted....
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....on is also earning and hence, he has mobilized an amount of Rs. 1,35,000/-. But, there is no evidence as to how many properties are owned by the complainant and to whom he has let them on rent and what was the rent received by him. Even his evidence is also silent regarding his post-retirement pension as on the date of advancing loan to the accused. Even he has not examined his son to establish that, his son has financially helped the complainant in advancing the alleged hand-loan or to prove financial status of complainant. 14. Very interestingly, in the entire complaint and in the evidence, the complainant has nowhere asserted the exact date of advancement of the hand-loan. It is simply asserted that, there was a demand by accused in J....
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....he offence under Section 138 of the N.I. Act is attracted only if the cheque in dispute is being issued towards legally enforceable debt. In the instant case, though the complainant has asserted that he had advanced hand-loan of Rs. 1,35,000/-, the evidence discloses that, he has failed to establish his financial status to advance such a huge amount to the accused. Further, Ex. D3 discloses that, on behalf of Vajravelu, notice has been issued to the accused for repayment of the hand-loan. Though it is asserted that Ex. D3 is a concocted document, but to substantiate the same, the complainant ought to have examined his son-in-law Sri. Vajravelu. But, no attempt has been made. Exs. D1 and D2 establish that some amount is paid to Vajravelu, th....