TMI Blog2023 (11) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant point of time. The accused has stepped into the witness box and deposed that the cheque in question as well as the demand Promissory note were given to the son of complainant in connection with the chit fund business run by him and misusing the same, the complainant has filed this complaint. Of course the cross-examination of accused establish the fact that during 2013, he had taken loan of Rs. 16 lakhs from Vijaya Bank and he is repaying the same. Though the demand Promissory Note state and also it is pleaded by the complainant that accused had agreed to repay the said sum along with interest at 2% p.m., there is no explanation for not making any attempts to recover the interest. Both trial Court as well as the Sessions Court has failed to appreciate the oral and documentary evidence placed on record by the complainant in the light of specific defence taken by the accused. Simply on the basis that presumption under Sections 118 and 139 of N.I. Act, they proceeded to convict the accused. The findings of the trial Court as well as the Sessions Court are contrary to the evidence placed on record and as such perverse. It is erroneous and calls for interference by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he has disputed that he borrowed hand loan of Rs. 5 lakhs and executed demand Promissory Note-cum-Consideration Receipt on 11.07.2017 and on the next date he had issued the cheque in question towards repayment of the said loan. Accused has taken up a specific defence that the son of complainant was running chit fund business and he had participated in the said chit fund transaction and issued the cheque/Demand Promissory Note and misusing the same, the complainant has filed the complaint. The accused has also contended that complainant is not having financial capacity to advance him Rs. 5 lakhs. 5. Accused pleaded not guilty and claimed trial. 6. In order to prove the allegations against the accused, complainant has examined himself as PW-1. He has examined one witness to the demand Promissory Note as PW-2 and got marked Ex.P1 to 7. 7. During the course of his statement under Section 313 Cr.P.C accused has denied the incriminating evidence. 8. He has examined himself as DW-1 and relied upon Ex.D1. 9. Vide the judgment and order dated 11.02.2021, the trial Court convicted the accused and sentenced him to pay fine of Rs. 6 lakhs in default to undergo simple imprisonm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque in question is drawn on his account maintained with his banker and it bears his signature, presumption under Sections 118 and 139 of N.I. Act is attracted to the effect that the cheque was issued towards legally recoverable debt or liability. Therefore, the initial burden is on the accused to prove that no consideration has passed i.e, the cheque was not issued towards repayment of any legally recoverable debt or liability and the circumstances in which the cheque has reached the hands of the complainant. Only after the accused rebut the presumption, the burden shifts on the complainant to prove his case, including passing of consideration and his financial capacity to lend such huge sum of money at the relevant point of time. Of course it is sufficient for the accused to rebut the presumption by preponderance of probabilities. However, the complainant is required to discharge the burden shifted on him beyond reasonable doubt. 16. It is pertinent to note that before filing the complaint, the complainant has sent legal notice as per Ex.P4 and it is served on accused as per Ex.P5. Though the accused has denied that notice is served on him, during his cross-examination he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant that on 11.07.2017 accused requested for loan of Rs. 5 lakhs and on the same day he paid the said amount in the presence of witnesses and obtained a demand Promissory Note-cum-Consideration receipt. On the next day i.e., on 12.07.2017, accused issued the subject cheque with a direction to present it on 18.09.2017. In his examination-in-chief also, the complainant has reiterated his case. However, during the course of his cross-examination, he has come up with a case that accused requested for loan one month prior to 11.07.2017. He had Rs. 4 lakhs in his account and he withdrew the same and adding cash of Rs. 1,00,000/-which he had in his house, he paid Rs. 5 lakhs. This statement made by the complainant during his cross-examination is required to be appreciated in the light of certain entries in his account statement at Ex.P7. As per these entries, on 19.06.2017, Rs. 88,000/-on 20.06.2017, Rs. 2,12,000/-and on 21.06.2017, Rs. 1,00,000/-is credited to his account which comes to Rs. 4 lakhs. 20. With regard to complainant getting these amount, he has stated that he got the sums by selling coconut. Though the complainant has claimed that he is having agriculture land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of his evidence, the complainant has pleaded and deposed that he presented the subject cheque only once i.e., on 18.09.2017 and it was dishonoured as per the endorsement at Ex.P3. However, the account extract at Ex.P7 indicate that thrice i.e on 13.07.2017, 16.08.2017 and 20.09.2017, the complainant has presented the cheque for encashment and on all the three times, it is returned dishonoured for Funds Insufficient . The complainant is not having any explanation as to why he presented the cheque thrice. It is not his case that he brought the fact of dishonour of cheque on the first and second occasion to the notice of the accused and on his instructions presented it on the second as well as on the third time. This also creates doubt as to the bonafides of the case of the accused. 24. Though the complainant has examined PW-2 Y.B.Nagaraju, as a witness to the demand Promissory Note-cum-Consideration Receipt at Ex.P6, his evidence is not of any help to improve the case of the complainant. As rightly observed by the trial Court, instead of helping the complainant, his evidence creates doubt as to the veracity of complainant's case. Despite making such observation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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