TMI Blog2022 (5) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ble that the cheque was given only for security purpose but without producing any document to show he has repaid the loan to the complainant, then he has to pay the cheque amount when it is presented for encashment which is legally recoverable debt. Another contention taken by the accused is that the complainant is not having capacity to lend so much amount as loan but in the cross examination of PW1 he himself elicited complainant is having 7 cars and he is running the travel agency and accused also running travel agency and appellant also had purchased 4 Innova cars for let out in his travel agency - The contention of the respondent accused is not acceptable as the complainant is having 7 cars of his own and other 4 Innova cars purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent in CC. No. 3753/2013 dated 05.01.2014. 2. Heard the arguments of learned counsel for the appellant as well as learned counsel for respondent. 3. The ranks of the parties are retained for the purpose of convenience. 4. The case of the complainant is that the accused said to be running traveling business and for improvement of his business and also for construction of his house he had borrowed a sum of Rs. 7,00,000/- from the complainant on 4.5.2012 and promised to repay within 5 months and also had issued a post dated cheque drawn on Central Bank of India Ramamurthy Nagar, Bangalore and on the same day the wife of the accused executed a loan agreement. Accordingly, when the cheque was presented for encashment it had becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and to confirm the order of conviction of the order of trial court. In support of his argument the learned Counsel for the appellant relied upon judgment of the Madras High Court and judgment of this Court reported in ILR 2005 Karnataka 3167 and judgment as below: 1. Hiten P. Dalai vs. Bratindranath Banerjee 2001 SCC (2001) 6 SCC 16, 2. ICDS Ltds., V/s Beena Shabeer and Anr. reported in (2002) 6 SCC 426. 3. Sail Vs. Jaggu reported in (2019) 7 SCC 658 6. Per contra the learned counsel for the respondent has supported the judgment of the first appellate court and contended that as per the agreement of the appellant in Ex. P9 the wife of the accused agreed to repay amount as she had borrowed the loan where the accused is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for interference? 8. Having heard the arguments and perused the records, the case of the complainant is that the accused borrowed loan from the complainant for improving the business as well as construction of building and for repayment he has issued cheque which become dis-honoured. The cheque in question has been marked as Ex. P1 in the Trial Court. The further case of the complaint is that for the purpose of repayment of the loan they executed loan agreement as per Ex. P9. The PW1 admitted in the cross examination that the cheque was given as a security of the loan under Ex. P9 and his wife signed the agreement. In view of the admission the trial court has stated that the said admission is the stay admission, therefore it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of such cheque the consequences contemplated under the Negotiable Instruments Act had befallen on respondent No. 2. As indicated above, the respondent No. 2 may have the defense in the proceedings which will be a matter for trial. In any event, the respondent No. 2 in the fact situation cannot make a grievance with regard to the cognizance being taken by the learned Magistrate or the rejection of the petition seeking discharge at this stage. 20. The appellant cannot be non-suited for proceeding with the complaint filed under Section 138 of N.I. Act merely due to the fact that the cheques presented and dis-honoured are shown to have been issued as security, as indicated in the loan agreement. In our opinion, such contention would ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay Rs. 7,00,000/- to the complainant. The contention of the respondent accused is not acceptable as the complainant is having 7 cars of his own and other 4 Innova cars purchased for letting out for rent. Therefore merely he purchased car by loan, that itself is not ground to say he has no money in his hand when he is having 11 cars and travel business. The capacity of the complainant clearly reveals he has capacity to pay such amount to the accused. 10. In this regard Hon'ble Supreme Court also held in a recent judgment Basalingappa Vs. Munibasappa relied by the accused counsel where the Hon'ble Apex Court has held the financial capacity are based upon the evidence lead by the defense. The accused required to raise the probable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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