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2021 (1) TMI 19 - KARNATAKA HIGH COURTDishonor of Cheque - existence of legally enforceable debt or not - rebuttal of presumption - Section 139 of the NI Act - HELD THAT:- It is clear that the amounts are not given to the complainant. DW.3 though in his evidence, he says that the amount was paid in his presence and the complainant has affixed the signature on Ex.D2. It is elicited in the cross-examination that he does not know anything about the payment of money by the complainant to the accused and also how much amount was paid to him, but he claims that the complainant told him that the accused has availed an amount of ₹ 3,50,000/- and insisted him to get the money from the accused. He also claims that in the Hotel, it was decided to return the amount of ₹ 5,50,000/-. All of them have signed the documents in the Kanishka Hotel, DW.2 was also present and he claims that an amount of ₹ 2 lakhs was paid, but he came to know that already an amount of ₹ 3,50,000/- was paid prior to that. DW.2 says that in his presence the amount was not paid and he subsequently signed the documents-Exs.D2. But DW.3 claims that in his presence only after receiving the amount of ₹ 2 Lakhs, the complainant has signed the documents. The trial Judge failed to appreciate the admission elicited from the mouth of DWs.1 to 3 particularly with regard to the defense which he has taken instead of that doubted the case of the complainant. Even though nothing is elicited in the cross- examination of PW.1 except not disclosing the same in the Income Tax returns. Hence, the Judgment of the Trial Court requires to be set aside, the same is perverse and not based on the material available on record and also the documents relied upon by the accused also not creditworthy and the accused even gone to the extent of indulging in creating of document - Ex.D2 and other documents not comes to the aid of the accused and in spite of that he has not rebutted the evidence of the complainant, erroneously acquitted the accused. The subject matter of the cheque is for the year 2008 and almost 12 years has elapsed and while imposing the fine, this Court has to take note of the period of 12 years in sentencing the accused for the offence under Section 138 of the NI Act - the impugned judgment of acquittal is set aside - appeal allowed.
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