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2020 (5) TMI 446 - KERALA HIGH COURTDishonor of Cheque - validity of concurrent verdicts of guilty and conviction made against her by the courts below and the sentence imposed - offence u/s 138 of NI Act - absence of evidence to rebut the presumption under Section 139 of the Act - HELD THAT:- The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused. In the present case, the accused had challenged the financial capacity of the complainant to lend an amount of ₹ 4,50,000/-. The complainant gave evidence regarding the source of the money lent by her to the accused and the courts below have found that such evidence is reliable and acceptable. Moreover, it is a case in which the accused admits that she had borrowed an amount of ₹ 2,90,000/- from the complainant. In such circumstances, the plea of the accused that the complainant had no financial capacity to advance the money, is only to be rejected. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction - the conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. Petition dismissed.
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