TMI Blog2015 (2) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... savings from his salary and an amount of ₹ 5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, there is any averment with regard to the sale price of site No.45. The concerned sale deed was also not produced. Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income-tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of ₹ 1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of ₹ 14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial. 3. The respondent herein/complainant and the appellant/accused were working as lecturers in a Government College at Bangalore. The case of the complainant is that the accused borrowed a loan of ₹ 14 lakhs in cash on 1.12.1997 from him to start granite business, promising to repay the same with 3% interest per month on demand and issued post-dated cheque dated 30.11.2000 for sum of ₹ 29,12,000/- which included principal and interest and few days prior to presentation of the cheque on its due date to bank for encashment, the accused requested him not to present the cheque and took extension of time of another three years for repayment and finally issued a cheque dated 16.08.2005 for a sum of ₹ 73,83,552/- which incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant unless the accused rebuts that presumption? 5. Relying on the ratio laid down by this Court in the decision in Rangappa vs. Sri Mohan [(2010) 11 SCC 441] the High Court answered the first issue in the negative and the second issue in the affirmative. It further held that the orders of acquittal recorded by the trial court in all the appeals suffer from legal infirmity as the prosecution has been undone only on the ground that complainant had not proved his capacity to lend money and hence those orders are liable to be set aside. Accordingly it allowed the appeals and set aside the respective judgments of acquittal and remanded the cases to courts concerned directing retrial. The present appeal is preferred challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble debt or liability and that is a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. Relying on the said ratio the High Court answered the two legal issues raised by it in the impugned judgment. Though the criminal appeals were preferred against the judgment of acquittal passed in all the cases arising under Section 138 of the N.I. Act, the factual matrix and the evidence adduced were different. The High Court after answering the two legal issues did not consider the merits of each case individually and has simply remanded the matter to the trial court for fresh consideration. 9. In the present case the complainant and the accused we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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