TMI Blog2019 (8) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... se that the amount paid by his father to discharge the liability towards the bank was adjusted in the sale consideration - In such circumstances, the evidence of DW1 that she had given Ext.P1 cheque to the father of the complainant as security for the amount due to him, is reliable and trustworthy. It is significant that there is no averment in the complaint that the accused had borrowed ₹ 1,50,000/- from the complainant on 15.02.2004 or on any other date. The averment in the complaint is only that the accused owed ₹ 1,50,000/- to the complainant. In the particular circumstances of the present case, absence of averment in the complaint on that aspect, is fatal to the case of the complainant - In view of the presumption envisaged under Section 139 of the Act, absence of averment in the complaint regarding any subsisting liability, will not affect the maintainability of the complaint. But, it may help the accused to prove that the plea raised by him is probable and that the case set up by the complainant in evidence is highly improbable. Thus, the accused had discharged the onus of proving that Ext.P1 cheque was not received from her by the complainant in discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount in the account of the accused. Ext.P3 is the intimation given to the complainant from his bank regarding the dishonour of the cheque. It is dated 18.05.2004. Ext.P4 is the copy of the lawyer notice sent by the complainant to the accused. It is dated 05.06.2004. Ext.P6 is the cover which contains the notice which was returned unserved. 7. When examined as PW1, the complainant stated in examination-in-chief (proof affidavit) that the accused had borrowed ₹ 1,50,000/- from him on 15.02.2004. He has stated that, when he demanded repayment of the amount, the accused gave him Ext.P1 cheque dated 20.04.2004 for ₹ 1,50,000/-, which contained her signature. 8. The plea of the accused, as revealed from the cross examination of PW1 and also the statement filed by her after her examination under Section 313 Cr.P.C, is as follows: There was no financial transaction between her and the complainant. She had not borrowed any amount from the complainant on 15.02.2004 or at any time. She had not issued any cheque to the complainant in discharge of such liability. In the year 2002, 10 cents of property was sold by her mother to the father of the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m another person. The plea of the accused that, her mother had given an unsigned blank cheque belonging to her to the father of the complainant and that he readily accepted it as security for the amount paid by him for discharging the liability towards the bank, cannot be swallowed as such by the court. The complainant has stated in examination-in-chief that the accused gave him Ext.P1 cheque bearing her signature. Not even a suggestion was made to PW1 in the cross examination that Ext.P1 cheque does not bear the signature of the accused. In these circumstances, there can be no doubt with regard to the fact that Ext.P1 cheque was executed by the accused. 11. The mere fact that Ext.P1 cheque was executed by the accused does not mean that it was issued or delivered by her to the complainant. But, the complainant is in possession of the cheque and the presumption under Section 139 of the Act is in his favour. The burden is upon the accused to rebut the presumption. The accused has the burden to explain under what circumstances the cheque, which bears her signature and which was issued to her from her bank to operate her account, reached the hands of the complainant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he presumption under Section 139 of the Act by leading evidence and also by relying upon the improbabilities in the case set up by the complainant. 14. The evidence of DW1 proves that she had sold 10 cents of property to the father of the complainant in the year 2002 and at the time of the sale, there was liability towards the bank which was a charge on that property. PW1 has admitted on cross examination that his father had purchased 10 cents of property from the mother of the accused. DW1 has given evidence regarding the sale of 10 cents of property by her to the father of the complainant and the payment of the amount due to the bank by the father of the complainant. There is no cross examination of DW1 on these aspects. The complainant has no case that the amount paid by his father to discharge the liability towards the bank was adjusted in the sale consideration. In such circumstances, the evidence of DW1 that she had given Ext.P1 cheque to the father of the complainant as security for the amount due to him, is reliable and trustworthy. Only that part of the evidence of DW1 that it was an unsigned blank cheque which cannot be believed. The facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged under Section 139 of the Act, absence of averment in the complaint regarding any subsisting liability, will not affect the maintainability of the complaint. But, it may help the accused to prove that the plea raised by him is probable and that the case set up by the complainant in evidence is highly improbable [See Vijay v. Laxman: (2013) 3 SCC 86 and Divakaran v. State of Kerala :2016 (4) KHC 901: 2016 (4) KLT 233 ]. 19. The accused has also raised a plea that the complainant had no financial capacity to lend an amount of ₹ 1,50,000/-. A specific suggestion to that effect was made to PW1 in the cross examination. PW1 would say that he was conducting the business which his father was earlier conducting. He has not stated what is the nature of the business conducted by him. He has not disclosed the income from the business allegedly conducted by him. No material was produced by the complainant to show that he had financial capacity in the year 2004 to lend such amount. It is to be noted that the amount allegedly borrowed by the accused cannot be considered as very small during that period. When the accused raises a probable defence and challenges the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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