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2018 (9) TMI 996 - HC - Indian LawsDishonor of Cheque due to insufficiency of funds - repayment of loan - Order of acquittal - Section 138 of the Negotiable Instruments Act, 1881 - Held that:- There is a material contradiction in the complaint, proof affidavit filed for Chief-examination and Cross-examination. The appellant has not stated any specific date either in the notice, complaint or in the proof affidavit, but he has simply stated that the respondent borrowed a sum of ₹ 6,00,000/- during the year 2006 for his business development as hand loan on oral promise to repay the same shortly. Secondly, since the appellant repeatedly demanded to repay the said amount orally, the respondent instead of repaying the loan amount he issued a cheque dated 23.11.2006 bearing No.768492 dated 23.11.2006, drawn on ICICI Bank, Pricol Complex, Periyanaickenpalayam, Coimbatore. Further, the appellant, in his cross examination, has stated that the respondent issued post dated cheque dated 23.11.2006 on 01.03.2006, but, no where, he has stated that the respondent issued a post dated cheque on 01.03.2006 itself. It is well settled law that the appellant/complainant has to prove the case in the manner known to law. Even though, the respondent denied the case, he has not come forward to examine any witness to deny the execution of the cheque. Though the appellant alleged the borrowal of money and the issuance of cheque, he has not automatically entitled to the relief sought for in the complaint, unless he proved his case. There is a material contraction in the materials placed by the appellant namely, the complaint, proof affidavit and evidence. Even though, the respondent denied the borrowal and issuance of the cheque in the notice itself, the appellant has not stated anything either in the complaint or in the proof affidavit about the specific date of borrowal and date of issuance of post dated cheque. The appellant has not established his case. Hence, the trial Court found that the respondent is entitled for acquittal and there is no need to interfere with the judgment passed by the Court below - appeal dismissed.
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