TaxTMI 
TaxTMI 
2025 (6) TMI 1427
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.... present application as well as the impugned judgment and order and paper book filed by the applicant are as under: 2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a hand loan of Rs. 15,00,000/- from the applicant and the accused had issued cheque No. 011511 and cheque No. 11512 for the amount of Rs. 2,55,000/- each dated 01.12.2008, cheque No. 008978 for the amount of Rs. 2,40,000/- dated 15.04.2009 and cheque No.142995 for the amount of Rs. 7,50,000/- dated 04.05.2009 from his account with The District Co-operative Bank Ltd, Kalikund, Dholka Branch. The applicant deposited cheque No.011511 and cheque No. 11512 for the amount of Rs. 2,55,000/- each dated 01.12.2008 and cheque No. 008978 for the amount of Rs. 2,40,000/- dated 15.04.2009 in his account with The Ahmedabad District Cooperative Bank Ltd, Kalikund, Dholka Branch and all the three cheques were dishonored and the reason mentioned in the return memo was "Funds Insufficient". The applicant sent the statutory demand notice to the accused on 23.05.2009 which was duly served but no payment was made. The applicant filed the criminal complaint before the Court of th....
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.... and the leave to appeal must be granted. 6. Learned Ms. C.M. Shah for the respondent - State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgment and has passed the judgment and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected. 7. With regard to the facts in the present case, it would be fit to refer to the observations made the Apex Court in Rangappa vs Sri Mohan reported in 2010 11 SCC 441 in para 14 which reproduced as under: "14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to r....
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.... is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the Accused to come in the witness box to support his defence. 24. xxxx 25. xxxx 26. xxxx 27. xxxx 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot....
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....kill the wife and children of the accused and because of their threats, the accused had written a suicide note and had tried to commit suicide. From the record of the case, it transpires that after the cheque returned unpaid the demand statutory notice was served to the accused. As per the say of the applicant, the accused had taken an amount of Rs. 15,00,000/- from the applicant on 01.12.2008 and had executed a deed regarding his agricultural land and that he had taken the amount on loan from the applicant. The accused had given cheque No.011511 and cheque No.11512 for the amount of Rs. 2,55,000/- each dated 01.12.2008 and cheque No.008978 for the amount of Rs. 2,40,000/- dated 15.04.2009 from his account with The District Co-operative Bank Ltd, Kalikund, Dholka Branch but the cheques had returned unpaid with the endorsement "Funds insufficient". After the demand statutory notice was given as the amount was not paid the applicant filed Criminal Case No. 1179 of 2009 in the Court of the Judicial Magistrate First Class, Dholka. 8.1 In the further statement of the accused recorded under the section 313 of the Code of Criminal Procedure, the accused has mainly denied all the evidence....