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2021 (8) TMI 476 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - alleged acquaintance of the accused with the complainant - rebuttal of presumption - Sections 138 and 139 of the N.I. Act - HELD THAT:- The complainant has failed to mention as to when the alleged loan was given and when the cheque in question is said to have been given by the accused to her. Admittedly there are no documents with respect to the alleged loan. She has not even stated as to why no documentation of the alleged loan was made by the parties. Admittedly the accused was not a person well known to her rather as stated by the complainant herself, he was introduced to her only from the alleged sister of the accused. On the other hand the accused as D.W.1 has stated that the cheque in question was given to his cousin sister by name Anitha with whom his relationship has been strained. Further P.W.1 in her cross examination also could not identify the accused. Admittedly the complainant could not able to reveal the name of said alleged sister of the accused who according to her introduced the accused to her. According to the complainant, the loan was given to the accused for construction of a building complex by name 'Gajanana Tower'. The accused as D.W.1 has stated in his evidence that the construction of the said building Gajanana Tower had been completed in the year 2001 and he had sold the said building in the year 2005 itself - the question of he availing loan from the complainant to put up a construction does not arise. The complainant upon whose shoulder the burden of proving the alleged existence of legally enforceable debt was reverted, could not able to discharge the same. This aspect both the Trial Court and the Sessions Judge's Court failed to notice. On the other hand they were carried away by the fact that the accused was the drawer of the cheques in question which came to be returned unpaid when presented for realization and proceeded to hold that accused is guilty of the alleged offence. The revision petition is allowed.
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