TaxTMI 
TaxTMI 
2024 (1) TMI 1287
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....red to by their rank before they trial Court. 3. Complainant filed a private complaint against the accused alleging that he and accused are known to each other since several years. Accused approached the complainant for financial assistance as he was facing financial difficulties. In this regard complainant paid Rs.3.5 lakhs to the accused by way of hand loan in the second week of January 2016 by cash. Accused promised to repay the same within six months. However, accused failed to keep up the said promise and after repeated request and demand, he issued a cheque dated 14.07.2016 for a sum of Rs.3.5 lakhs with an assurance that it will be honoured on presentation. However, on 16.07.2016, when complainant presented the cheque for realizatio....
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.... he had issued blank cheque and though the accused repaid the said amount, the cheque was not returned and misusing the same, the complaint is filed. The accused has disputed the financial capacity of the complainant. However, complainant has failed to prove that immediately prior to the alleged advancing of loan to the accused, he was having financial capacity to lend the said money. Only on the basis of the presumption under Section 139 of the N.I. Act, the Courts below have accepted the case of the complainant. Despite the presumption under Sections 118 and 139 of N.I Act, having regard to the fact that complainant has failed to prove his financial capacity, the complaint is liable to be dismissed and prays to allow the petition, set asi....
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.... accused rises issue of financial capacity of complainant, in support of his probable defence, despite presumption in favour of the complainant 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 a case of giving loan by cash and thereafter issue of cheque. In the light of the ratio of the Hon'ble Supreme Court, burden is on the complainant to prove his financial capacity. Therefore, it is necessary to examine whether the complainant has discharged the said burden. 16. To prove his financial capacity, the complainant has taken up a plea that at the relevant point of time, as per Ex.P-6 a tempo traveller beari....
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....rom his account, standing in Corporation Bank and there is no difficulty for him to produce the same. However, the complainant has not produced his account extract to evidence the said fact. It would have been sufficient for the complainant to produce the said account extract to establish Rs.3.5 lakhs paid to the accused was withdrawn by him from his account. Thus, the complainant has failed to prove his financial capacity, despite making a vain attempt to prove that a vehicle was sold for Rs.4,80,000/- and out of the said amount, he lent Rs.3.5 lakhs to the complainant. 19. In the complaint, the complainant has specifically pleaded that the sale of tempo was made on 18.05.2015 and the loan was advanced during January 2016 and the accused ....