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2021 (9) TMI 863 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of the accused - discharge of legally enforceable debt or not - rebuttal of presumption - Section 139 of N.I. Act - HELD THAT:- It is to be noted here that, loan is said to have been advanced in 2009, but however, in the entire complaint there is absolutely no reference as to the date of advancement of loan for ₹ 2,00,000/-. It is hard to accept the contention that such a huge loan is being advanced and the complainant does not remember the date of advancement of loan. Even in the examination-in-chief P.W. 1 has not stated regarding date of advancement of loan. In the cross-examination, P.W. 1 has admitted that he has advanced the loan without obtaining any document. The evidence of P.W. 1 itself disclose that his monthly income is ₹ 5,000/- to ₹ 6,000/-. Further, in his cross-examination, he claimed he had withdrawn the amount from the bank and paid it to the accused. But to substantiate the said contention that he has bank account and was having balance of more than ₹ 2,00,000/- as on that particular date, no documents have been produced by the complainant - Admittedly, the accused is neither a friend nor relative of the complainant. Hence, the financial status of the complainant itself is in doubt and as such, the accused has created a dent in the case of the complainant. Considering these facts and circumstances, it is evident that the accused has rebutted the presumption available in favour of the complainant. Thereafter, the burden again shifts on the complainant to establish his financial status, but the complainant has not placed on record any document in this regard so as to prove financial status and to advance huge loan of ₹ 2,00,000/- to a person, who is not a close relative or close friend and without any security. Under these circumstances, looking to the facts, it is evident that the complainant has failed to establish the fact that Ex. P1 is issued in discharge of a legally enforceable debt. The learned Magistrate has considered all these aspects and appreciated oral and documentary evidence in detail. The judgment of acquittal passed by the learned Magistrate is neither perverse nor capricious so as to call for any interference by this court. Hence, the appeal is devoid of any merits and needs to be dismissed - Appeal dismissed.
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