Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (5) TMI 69 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - discharge of legally enforceable/recoverable debt or not - Acquittal of the accused - offence punishable under Section 138 of NI Act - HELD THAT:- Herein in this case the accused taken the contention that it was a security cheque which was given to the accused for some other transaction for getting rented car from the complainant but he has not produced any document to prove his contention - once the cheque is issued as security for the loan and if the loan is not paid back then if the cheque is dishonoured which attract 138 of NI Act - Therefore, the contention of the accused counsel cannot be acceptable that the cheque was given only for security purpose but without producing any document to show he has repaid the loan to the complainant, then he has to pay the cheque amount when it is presented for encashment which is legally recoverable debt. Another contention taken by the accused is that the complainant is not having capacity to lend so much amount as loan but in the cross examination of PW1 he himself elicited complainant is having 7 cars and he is running the travel agency and accused also running travel agency and appellant also had purchased 4 Innova cars for let out in his travel agency - The contention of the respondent accused is not acceptable as the complainant is having 7 cars of his own and other 4 Innova cars purchased for letting out for rent. Therefore merely he purchased car by loan, that itself is not ground to say he has no money in his hand when he is having 11 cars and travel business. The capacity of the complainant clearly reveals he has capacity to pay such amount to the accused. Hon'ble Supreme Court also held in a recent judgment 2019 (4) TMI 660 - SUPREME COURT relied by the accused counsel where the Hon'ble Apex Court has held the financial capacity are based upon the evidence lead by the defense. The accused required to raise the probable defense in his evidence but here in this case he has strengthen the evidence of the complaint that he is having 11 cars. Such being the case, the contention of the respondent counsel cannot be acceptable. Therefore, it is held the cheque was issued for discharge of the loan and the same was dis-honoured for want of funds, thereby the accused committed the offence under 138 of NI Act. Appeal allowed - decided in favor of appellant.
|