TMI Blog2019 (3) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... se nor unreasonable. Perusal of the record shows that the respondent has been able to rebut the statutory presumption. The petitioner has not been able to establish that he had the capacity to extend a friendly loan of ₹ 4,90,000/- without any condition and that such a loan was extended and was to be repaid and the subject cheque was issued for repayment of the loan - petition dismissed. - CRL.REV. P. 63/2015 - - - Dated:- 15-3-2019 - MR SANJEEV SACHDEVA J. Advocates who appeared in this case: For the Petitioners: Ms. Amita Gupta, Advocate. For the Respondent: Mr. H.G.R. Khattar, Advocate. JUDGMENT SANJEEV SACHDEVA, J. 1. Petitioner impugns judgment dated 19.12.2014 whereby the Appellate Court has se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earning only ₹ 15,000/- per month. The Appellate Court found that evidence established that the petitioner s family expenditure was about ₹ 20,000/- per month. Appellate Court noticed that there was no material to show that the petitioner had capacity to make an arrangement of ₹ 4,90,000/- to give as friendly loan to the respondent. 6. Appellate Court found favour with the statement of the respondent that he had a transaction with Mr. Subhash Aggarwal (employer of the petitioner) to whom blank cheques were given as security and the cheque had been misused and filled in the name of the petitioner and deposited in the bank. Appellate Court has also noticed that the ink used on the body of the cheque was different from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of the appellant, who has also deposed that whenever, there was shortage of money Sh. Subhash Aggarwal used to take blank cheques from his father. After receiving the payment Subhash Aggarwal avoided to return the cheques to the appellant. The complainant, who appeared as CW-1 has admitted that he is working with Shagun Jewellers and his employer name is Subhash Aggarwal. He has also admitted that he is working with him for the last 10 years. This witness also admitted that his employer has six branches in Delhi and his brother is working at Uttam Nagar. I am of the view that respondent is working with Shagun Jewellers and his employer name is Subhash Aggarwal. This witness also admitted that his brother's wife is also working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to settle the matter with Subhash Aggarwal. This witness also stated that they used to purchase jewellery from showroom of Subhash Aggarwal situated at Arya Samaj Road, Uttara Nagar. It is also admitted that Subhash Aggarwal has filed criminal case against the appellant. It is not denied that Subhash Aggarwal has also filed other criminal complaint u/s. 138 N.I. Act. DW-1 was cross examined by the counsel for the respondent and it was suggested that the Subhash Aggarwal has also filed a complaint case, which is pending in the Court of Ms. Harlin Singh, Ld. MM, THC and is fixed for 24.02.2012. The complainant has not stated that the cheque is filled by the accused in his handwriting. DW-4 has also proved that cheque book bearing No. 205451 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rebut the presumption u/s. 118 of NI Act. I am of the view that onus shifted to the complainant to show from which source he had arranged the amount of ₹ 4.90,000/-. The complainant failed to tell the name of person from whom he had arranged this amount. I am of the view that complainant is not able to prove that cheque in question was given by the appellant in discharge of the liability. 13. I am of the view that Id. MM has wrongly held that income of the complainant is ₹ 50,000/- to ₹ 60,000/- per month. The Id. MM has failed to consider the evidence of DWs and ,no reason has been explained in rejecting the testimonies of DWs. The complainant admitted to be an employee of Subhash Aggarwal for the last 8-10 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly ₹ 15,000/- per month would make an arrangement of ₹ 4,90,000/- and give the same as a friendly loan. No date of extending the loan or rate of interest at which such loan was extended, has been mentioned. Neither there is any document executed nor the date when the loan was and of its repayment is mentioned. 14. The defence raised by the respondent that he had in fact transactions with Mr. Subhash Aggarwal and had handed over the cheque to Subhash Aggarwal who has then misused the same and filed the subject complaint as a proxy litigation through his own employee is a probable defence and rightly rebuts the statutory presumption. 15. Perusal of record as also the judgment of the Appellate Court shows that the finding re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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