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2023 (7) TMI 37 - MADRAS HIGH COURTDishonour of Cheque - insufficient funds - legally enforceable debt - rebuttal of presumption - onus to prove - HELD THAT:- The complainant P.S. Deivaraj in his cross examination had admitted that, he is a financier and also doing real estate business. He is an income tax assessee and he pay tax disclosing his income. However, he is not able to recollect his annual income and tax paid. He is not sure whether he had disclosed the loan transaction of Rs. 2,00,000/- with the accused. He admits that as a financier he used to advance money after getting pro-note. According to his testimony, the transaction with the accused is concerned, the accused borrowed money on promise to repay the loan amount with 18% interest within 5 months, but had paid interest only for two months and stopped paying the interest. He admits that he has not stated in his complaint or his statutory notice about execution of pro-note or promise to repay the money with interest. If the evidence of the accused, who was examined as DW-1 is scrutinised, we find he had reiterated that the cheque was obtained from him under force with the help of the police and he has lodged the complaint to the police, Chief Minister Cell and Human Rights Commission about the crime of extortion. He has specifically admitted that he had money transaction with the finance company by name 'Subalakshmi' and 'Yogalakshmi' and he owe the money due and payable under the Hire Purchase Agreement - When the complainant was cross examined about the two finance companies, he had denied knowledge about the existence of those two finances company till he received the reply notice from the accused. The complainant has also denied about knowledge regarding the complaints made by the accused before the police, Chief Minister Cell and Human Rights Commission. Having admitted the signature found in the cheque marked as Ex.P1, whether the accused had discharged his onus of rebutting the presumption? - HELD THAT:- The accused has failed to prima faciely show that he had transaction with the finance company by name 'Subalakshmi' 'Yogalakshmi'. He had failed to prove that the signature in the cheque was obtained under threat and force. The self serving documents Ex.D1 to Ex.D5 does not probabilise the case of the accused regarding the Hire Purchase loan with some other third party and in connection with the said dealing the subject cheque was obtained with the help of police - This Court take also note of the fact that the accused has alleged in the reply notice that the signature found in the cheque are forged and fabricated, but later sent the complaint to police authorities that he was forced to sign in the blank cheque under threat. For neither of his defence, he has let evidence to probabilise. A belated complaint much after issuance of the cheque alleging that it was obtained under force cannot be taken as an evidence probabilising the case of the accused. The Criminal Revision Case, which is taken as an appeal exercising inherent power, after giving due consideration to the points raised by the learned counsels for the accused and the complainant, holds that the complainant has proved his case against the accused. The offence under Section 138 of the Negotiable Instruments Act, 1881 is made out. Appeal dismissed.
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