TMI Blog2018 (10) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... broker office next to her residence and he used to come to her house. At no point of time before trial or during trial, she has explained the possession of her signed cheque with the complainant. It is also not the case of the accused that the complainant is man of no means. An accused in cheque bounce case is not without any opportunity to discharge the burden of presumption. The opportunity shall be by either at the time of reply notice or through cross examination of the prosecution witnesses or through mounting the witness box or examining any other person in support of defence. The reverse burden can be discharged by raising bona-fide doubt in the mind of the Court regarding consideration or enforceable debt through all or any of the above said mode - In this case, the accused had not opted any of the above mode to shift the burden. Except suggesting to the complainant that he has stolen the cheque and without knowing the financial and family background, he could not have advanced a huge sum of ₹ 2,80,000/- . In the said circumstances of the fact and law, the finding of the Courts below does not fall under any of the category to interfere in revision. Taking note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque was not issued by the accused. The cheque was stolen from the accused and misused by the complainant. There is no enforceable debt in respect of the cheque. The complainant has not proved his source for lending ₹ 2,80,000/-. The complainant has not shown the said money transaction in his income tax returns. 5.The Trial Court negatived the defence version, accepted the case of the complainant and convicted the accused under Section 138 of N.I. Act and sentenced him to undergo 6 months simple imprisonment and to pay a fine of ₹ 5,000/- in default to undergo 3 months simple imprisonment. 6.Aggrieved by the Trial Court judgment, the revision petitioner filed appeal in C.A.No.34 of 2011 before the learned Sessions Judge, Mahila Fast Track Court, Nagercoil. 7.In the appeal, it was contented that no prudent man will offer a huge amount without interest. The case of the complainant that he gave ₹ 2,80,000/- to the accused on 20.12.2007 and on the same day she gave cheque for ₹ 2,80,000/- to repay after 2 months without interest is unbelievable. The complainant has no money lending licence. The contradiction in the complainant case regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the complainant and another breath she admits that she know the complainant, who used to visit her house. She alleges the cheque was stolen from her house, but not lodged any complaint about it. She has denied her signature in the cheque, but did not attempt to prove it. The accused borrowed loan for a short period promising to repay within two months. She borrowed money to meet her urgent family expenses, since her husband was in prison at foreign land. Therefore, the same was given in cash. This fact is being elucidated in the deposition of the complainant. Since the transaction is not being a commercial transaction, the Judgment relied on by the learned counsel appearing for the revision petitioner does not apply to the facts of the case. 13.Heard the counsels representing the respective parties. Records perused. 14.Point for consideration: Whether there is any error in the reasoning or finding of the Courts below? 15.The cheque (Ex.P-1) is in respect of the account maintained by the accused in Dena Bank, Nagercoil Branch. The accused though denies the execution of the cheque, she has not let any evidence to substantiate the same. Mere denial of signature by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an accused in cheque bounce case is not without any opportunity to discharge the burden of presumption. The opportunity shall be by either at the time of reply notice or through cross examination of the prosecution witnesses or through mounting the witness box or examining any other person in support of defence. The reverse burden can be discharged by raising bona-fide doubt in the mind of the Court regarding consideration or enforceable debt through all or any of the above said mode. 20.In this case, the accused had not opted any of the above mode to shift the burden. Except suggesting to the complainant that he has stolen the cheque and without knowing the financial and family background, he could not have advanced a huge sum of ₹ 2,80,000/- . In the said circumstances of the fact and law, the finding of the Courts below does not fall under any of the category to interfere in revision. 21.The learned counsel appearing for the accused/revision petitioner submitted that the revision petitioner was arrested pursuant to the confirmation of the conviction by the first appellate Court. While preferring the revision petition, there was a delay of 502 days and in the meanwh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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