TMI Blog2018 (7) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... e promissory note was a blank promissory note that was available with the complainant towards the earlier chit transaction and this promissory note has been typed and used for the purpose of this case. If really the version of the complainant is true, the best evidence that was available for the complainant was to examine Jagadish who is none other than a person who is working in his own office - It must also be noted that it is during this period of time, the chit transaction was going on between the complainant and the husband of the accused. Out of these two cheques, one cheque bearing No.88032 is the subject matter of the present case. The version of the defense that the subject matter cheque was given as a security to the complainant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused is said to have executed a demand promissory note on the same date for a sum of ₹ 4,75,000/- [Rupees Four Lakhs Seventy Five Thousand Only] in favour of the complainant. Since this amount was not repaid in spite of demands and requests, in order to discharge the liability of the husband, the wife who has been arrayed as an accused is said to have issued a cheque bearing No.088032 dated 22.11.2005 for a sum of ₹ 3,75,000/- [Rupees Three Lakhs Seventy Five thousand Only]. When this cheque was deposited by the complainant, the cheque was returned with an endorsement ''account closed'' on 24.11.2005. Thereafter, the complainant issued a legal notice dated 03.12.2005 calling upon the accused to pay the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this cheque was given towards security for a chit that was conducted by the complainant in which the accused husband had joined. The accused husband had made a bid on 13.01.2003, and with that the entire transaction came to an end and therefore there is no necessity for the husband of the accused to again approach the complainant seeking for a loan in the year 2004 and there is no necessity for the accused to have issued a cheque to the complainant towards discharging the liability of the husband. This version was not taken as a defense at the earliest point of time by way of sending a reply notice to the statutory notice issued by the complainant. b)If the defense taken by accused is even presumed to be true, the entire chit trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Jagadish as a witness and below his signature the entire address has been typed. Therefore, the best evidence that was available for the complainant in order to prove the loan transaction, was to have called Jagadish as a witness and examined him. The learned counsel for the respondent further contended that the complainant in his evidence has specifically admitted that he is maintaining a Receipts and payments ledger and in that record this so called loan transaction was not even recorded. The learned counsel for the respondent would further submit that the accused has rebutted the presumption under Section 139 of the Negotiable Instruments Act by preponderance of probabilities and on such rebuttal, the complainant on whom the burden sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the promissory note and therefore the version of the complainant that the promissory note was brought typed by the accused and her husband is not believable. This only substantiates the case of the defense that the promissory note was a blank promissory note that was available with the complainant towards the earlier chit transaction and this promissory note has been typed and used for the purpose of this case. If really the version of the complainant is true, the best evidence that was available for the complainant was to examine Jagadish who is none other than a person who is working in his own office. 9.It is also seen from the records that were summoned through PW-1 Bank Manager that a cheque book containing 50 cheque leafs was act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the complainant as if a subsequent loan was taken in the year 2004, stands established and the burden of proof shifted on the complainant to prove that the cheque was issued for a legally recoverable debt or liability. 12.After the burden of proof was rebutted by the accused, the complainant must have at least examined Jagadish who according to him was the person who was present at the time when the loan was given by the complainant to the accused and her husband. However for reasons best to known to the complainant this was not done. Therefore, the Appellate Court after discussing the entire evidence that was available on record has rightly come to the conclusion that the complainant failed to prove the fact that the subject matter c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
