TMI Blog2012 (8) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ₹ 5,00,000/- and when the same was presented for collection through the Syndicate Bank, Karwar, the same was returned with an endorsement that the accused had stopped payment of the same. On receipt of such an endorsement, the appellant had issued a legal notice calling upon the accused to pay the amount due under the cheque, when there was no compliance in the demand, the complaint was lodged. The respondent had entered appearance and had contested the proceedings. The defence of the respondent was to the effect that there was no consideration in respect of which the cheque could have been issued, the cheque was apparently being mis-used by the complainant. It was claimed that the respondent was a real estate broker and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant. The Court below has accepted this argument and has dismissed the complaint. It is against such dismissal that the present appeal is filed. 4. The learned counsel for the appellant would submit that the Court below has mis-read the legal position and has also mis-interpreted the evidence on record to hold that the presumption that arises in favour of the holder of the cheque has been raised, in the cross-examination of the complainant by the accused to the effect that the complainant was in a position only to explain of having raised about ₹ 1,75,000/-, and that there was no evidence that the appellant was in a position to lend substantial amounts of money, and therefore, the case of the respondent to the effect that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts and having issued instructions to his banker to stop payment against the cheque, apart from the claim of the accused that the transaction had fallen through and that there was no further progress in the transaction. There is no evidence placed before the Court as regards seeking of refund of the cash in a sum of ₹ 30,000/- that was paid, nor is there any evidence of a notice as regards the breach of agreement. In the absence of which, it could not be presumed that there was an earlier transaction in respect of which the cheque was issued and that the same was being mis-used by the complainant. In that view of the matter, the learned counsel for the appellant would submit that the Court below was not justified in holding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale transaction, and did not pertain to any alleged loan transaction. Thus, the learned counsel, would emphasise and seek to point out from the record that the Court below was certainly justified in holding that the presumption in favour of the holder of the cheque had been raised in the light of the evidence that was available on record not only of the accused but also of five other witnesses, who had supported his case. 7. On these rival contentions, it has to be seen, whether the Court below was justified in holding that the appellant had not made out a case as regards the issuance of a cheque being in respect of a legal liability and that there was a cause of action in the cheque being dishonoured for want of funds, though it was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material on record to establish that there was a proposed sale of land, except the say of the respondent. Therefore, the Court below has put the cart before the bullock in holding that there was an independent transaction of a proposed agreement of sale in respect of which the cheque had been issued and that there was no loan transaction, as claimed by the appellant as he was not a man of means and did not have sufficient funds in hand to have lent such monies. This is a presumption that could not have been drawn by the Court below, on the basis of the defence that was set up by the respondent, in the absence of material in support of such a defence. 9. Therefore, the appeal is allowed. The judgment of the Court below is set aside. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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