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2015 (12) TMI 990 - HC - Indian LawsGrant of leave against the judgment of acquittal - The accused-respondent has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act (for short 'NI Act') - Held that:- On perusal of statement of the complainant, it has come on record that in his cross-examination, he has admitted that he is income tax payee and from the last six years, he has furnished ITR but he has not shown the amount of cheque in dispute in Income Tax Return. He has stated that he has borrowed this amount from his father as his father retired in December 2013 from Agricultural Department. Neither he has received anything in writing from his father nor there was any document to show that the amount was borrowed from him. It has also not been proved on record that he maintained any accounts. Moreover, he has also not produced any account statement to show that he has taken amount from his father. As per statement of complainant, his father retired in December 2013 from Agricultural Department and the amount in question was given to the accused in February 2012 much prior to his retirement. The accused has placed on record three documents Ex.D1 to Ex.D3. Ex.D1 is copy of complaint filed by brother of the complainant in the year 2010 and two cheques amounting to ₹ 55,000/- have also been mentioned. Said cheques were returned due to insufficiency of funds and thereafter, complaint was filed. No doubt, the complaint was dismissed as withdrawn but it shows that the cheque in dispute is also of the same series on the basis of which, earlier complaint was filed, which was dismissed as withdrawn. It has specifically been mentioned by the trial Court that it cannot be ruled out that the cheque in dispute was not misused as taken as a defence by the accused. The complainant has failed to prove as to in which capacity, he had paid such a huge amount without any document. The complainant has also failed to prove his case and the presumption goes against him. The trial Court considered the submissions and by considering the evidence on record, no case was made out against the accused and he was acquitted of the charge. Learned counsel for the applicant is not able to prove as to how the finding recorded by the trial Court is contrary to the evidence or law. Hence, the present application for grant of leave to appeal against judgment of acquittal is dismissed.
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