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2017 (8) TMI 1 - HC - Indian LawsAppeal under Section 378(4) of Cr.P.C., as against the 'Judgment of Acquittal' - Negotiable Instruments Act - Held that:- In the present case, it is to be pointed out by this Court that for a large sum of ₹ 5,00,000/- purportedly lent by the Petitioner / Appellant to the Respondent / Accused, no pro-note was taken by the Petitioner / Appellant / Complainant from the Respondent / Accused. Even in the absence of pro-note, except Ex.P.1, Cheque there appears to be no document in the form of receipt or in any other manner to and in favour of the Petitioner / Appellant / Complainant evidencing the payment of loan amount in question. In Law, the Respondent / Accused need not enter into the Witness Box and in fact he can maintain silence. The 'Onus of Proof' to establish a case lies on the Petitioner / Appellant and in fact the Respondent / Accused can pick holes or gather sufficient materials from the evidence of the complainant witnesses and is entitled to shake their evidence. The Respondent / Accused in his evidence, as D.W.1, had stated that the Petitioner / Appellant / Complainant is running a small provision store and the value of items in his shop would be ₹ 25,000/- and it was false to state that he issued cheque for ₹ 5,00,000/- and obtained a loan on 27.09.2014. Moreover, it is the evidence of P.W.1 that presently through Periyasamy, a cheque case was filed against him for ₹ 10,00,000/- on the file of Learned Judicial Magistrate, Bhavani and the same is pending. Apart from that, the Respondent / Accused had raised a plea that through Periyasamy, the Petitioner / Appellant had filed the present case before the trial Court. This Court comes to an irresistible conclusion that the Petitioner / Appellant / Complainant had failed to establish that Ex.P.1, Cheque was issued by the Respondent / Accused for a 'Legally Enforceable Debt'. Per contra, this Court is of the considered opinion that the Respondent / Accused had shaken the evidence of P.W.1 by gathering materials from his evidence. Moreover, P.W.1 had given a contradictory evidence during the trial in regard to the payment of loan amount to the Respondent / Accused. Looking at from any angle, the Judgment of the trial Court dated 24.10.2016 in S.T.C No.32 of 2015 is free from any flaw. Therefore, the Leave sought for by the Petitioner / Appellant / Complainant to prefer an Appeal in present Criminal Original Petition is not acceded to by this Court.
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