TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1706
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....int lodged by the respondent/complainant for the offence punishable under Section 138 of Negotiable Instruments Act (in short 'the NI Act') alleging that the petitioner borrowed a sum of Rs.27,00,000/- on 12.08.2015 as a hand loan for his business and family expenses and on the same day, assured to repay the amount within 15 days and to discharge the said liability, he issued a post dated cheque bearing No.099505 dated 12.08.2015 drawn on Indian Bank, Kallakurichi for a sum of Rs.27,00,000/- in favour of the respondent. When the said cheque was presented on 31.08.2015 for collection, the same was returned on 15.09.2015 with an endorsement "Funds Insufficient". Therefore, after causing statutory notice, the respondent has filed a com....
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.... source of income to lend such a huge amount. He also did not disclose his income tax returns to show that the amount, which was lent in favour of the petitioner was accounted with his income tax returns. Further, on the date of borrowal, the respondent did not receive any documents for security. Therefore, the respondent failed to prove that the cheque was issued for legally enforceable debt. In support of his contentions, he relied upon the order of this Court in Crl.R.C.No.599 of 2013 dated 11.03.2021 in the case of C.Ponnusamy Vs. M.Anbu, and submitted that this Court had held that when the accused rebutted the presumption satisfactorily by probablising valid defence, the burden shifted to the complainant. However, the complainant faile....
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....rference by this Court. In support of his contentions, he relied upon the judgment of the Hon'ble Supreme Court of India in the case of Tedhi Singh Vs. Narayan Dass Mahant reported in (2022) 6 SCC 735. 6. Heard the learned counsel appearing for the parties and also perused the materials available on record. 7. The crux of the complaint filed by the respondent is that on 12.08.2015, the petitioner approached the respondent to avail loan to the tune of Rs.27 lakhs. The respondent had sold out his immovable property and he had Rs.40 lakhs. Considering the request made by the petitioner, the respondent lend a sum of Rs.27 lakhs as hand loan on receipt of post dated cheque dated 31.08.2015 and the petitioner assured that the cheque will be....
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.... complainant would have to bring before the trial court cogent material to indicate that he had financial capacity and had actually advanced the amount in question by way of loan, in order to lend credibility to the transaction for which the cheque is alleged to have been issued in his favour. The Hon'ble Supreme Court in Tedhi Singh's case relied upon by the learned counsel for the respondent, has held as follows :- "10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless ....
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....stablish the very same aspect by pointing to the materials produced by the complainant himself. He can further achieve this result through the cross-examination of the witnesses of the complainant. 8. As discussed above, the petitioner categorically crossexamined the respondent and elicitated that he had no capacity to lend such a huge amount as loan. Moreover, the respondent had lent a sum of Rs.27 lakhs by cash only on receipt of post dated cheque. Except for the post dated cheque, no other documents were executed in favour of the respondent as security. Therefore, when the petitioner rebutted the presumption, the burden shifts on the shoulder of the respondent to prove his case. However, in this case, the respondent failed to prove that....