TaxTMI 
TaxTMI 
2023 (10) TMI 1610
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....sed has requested the complainant a hand loan of Rs.4,50,000/- for purchase of site at Vigneshwara Nagara, Sunkadakatte, Bengaluru. Considering the request of the accused, the complainant has paid Rs. 4,50,000/- to the accused in the 2nd week of December, 2010 out of his own savings and by raising loan from his relatives and friends. The accused promised to return the amount within one year with interest at the rate of 16% per annum. The accused has neither paid the amount nor the interest and on consistent demand made by the complainant, the accused in the month of February, 2013 issued a post-dated cheque dated 20.03.2013 for Rs.4,50,000/- drawn on ICICI Bank, Malleshwaram Branch, Bengaluru. When the said cheque was presented by the complainant through his banker, the said cheque returned for "insufficient of funds". Then the complainant has got issued a legal notice to the accused and inspite of service of legal notice the accused has neither paid the amount nor replied to the legal notice and hence, he lodged a complaint for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'). 4. The learned Magistrate has taken cogniza....
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....ainant. Perused the records. 12. The learned counsel for the revision petitioner would contend that the complainant has no financial capacity to advance hand loan of Rs.4,50,000/ -. He would further assert that he had transaction with one Ramachandraiah i.e PW.2, from whom he availed a loan of Rs.40,000/- and he discharged the said debt, but blank cheque was issued as security was being misused. He would further assert that the legal notice was not duly served on him and there is no due compliance of Section 138 of the N.I. Act, 1881. It is his contention that there is no legally enforceable debt and there is no transaction between the complainant and the accused. Hence, he would contend that, both the Courts below have failed to appreciate the oral and documentary evidence in proper prospective and have erroneously convicted him which has resulted in miscarriage of justice. As such he would seek for interference by this Court in this revision. 13. Per contra, the learned counsel for the respondent would contend that the cheque admittedly belongs to the accused and the signature on the cheque has been admitted. He would further assert that though the financial status is dispu....
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....e on the basis of preponderance of probability. 16. Learned counsel for the revision petitioner has raised an issue on service of notice and contended that the accused is not residing in the address shown in the complaint, but he did not disclose what is the exact address of the complainant, even in the evidence DW.1 did not disclose where he was residing and Ex.D1 simply discloses his address as residing Opposite to Ganesh Temple without specifying the cross. The learned counsel for the revision petitioner in this context places reliance on a decision of the Hon'ble Apex Court in the case of Thomas Vs. Jaleel - Part-III (2009) BC 659 (SC). But the facts and circumstances of the said case are entirely different and cannot be made applicable to the facts and circumstances of the case in hand. The accused has not produced any document to show what is his exact address and though the acknowledgement, the signature on the acknowledgment differs with signature on Ex.P1 but the notice was issued to a proper address and summons have been served on the same address and in the appeal memo as well as in the revision, same address has been shown and as such the contention raised in thi....
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....'ble Apex Court in the case of Tedhi Singh vs Narayan Das Mahant reported in 2022 (6) SCC 735, the accused can prove his defence by leading cogent evidence, by producing documents or even by cross- examining the witness. In the instant case by cross- examining PW1 he has exposed his financial capacity and the complaint allegations itself disclose that the complainant has no financial capacity as he mobilized the amount from his relatives. Looked to these facts and circumstances, by any stretch of imagination it cannot be said that the complainant has advanced a huge hand loan of Rs.4,50,000/- in second week of December 2010. In December 2010 the said amount was huge and it is not the case of the complainant that he is an income tax assessee. Further he asserts regarding interest and if he has asserted regarding interest, it is not personal transaction and it becomes a commercial transaction. Considering these facts and circumstances, it is evident that the disputed cheque under Ex.P1 though admitted, the evidence on record clearly establishes that cheque was not issued towards legally enforceable debt and accused has rebutted the presumption available in favour of the complaina....