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2019 (2) TMI 1788

..... witness box explaining the transaction, it is revealed that complainant appears to be a loan shark and charging interest @10% p.m. and appears to have misused pre-signed cheques obtained prior to advancing any amount. Not only that neither the complainant nor his advocate has courage to cross-examine respondent No.2-original accused who entered the witness box for rebutting the presumption through admissible evidence apart from preponderance of probability. The accused is supposed to rebut the presumption based on preponderance of probability only. Whereas, he is successful in this case to rebut the same by leading her own evidence. There are no reason to interfere with the order of acquittal based on sound reasonings and reached after appr .....

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..... cheque is not disputed by her and issued from her account, the presumption is required to be raised under Sections 139 and 118 of the Negotiable Instruments Act. He has further submitted that learned Magistrate has recorded reasons to acquit the accused which have no bearing over the issues involved in this case. He has further submitted that respondent NO.2-original accused has failed to rebut the presumption by leading cogent evidence and, therefore, this Court may grant Special Leave to Appeal and admit the appeal against respondent NO.2-original accused. 3. Though Mr.N.M.Ranka, learned advocate appears for respondent NO.2-original accused, is not present before the Court. However, I have gone through the record and proceedings as also .....

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..... iminal Procedure, 1973 and respondent No.2-original accused entered the witness box and she examined herself in defence vide Exh.18. The most relevant part of it, which is not reflected from the impugned judgment is that, accused has not been cross-examined by the complainant and he failed to remain present before the Court for the purpose of cross-examination. Not only that the advocate for the complainant was also not present to cross-examine respondent NO.2 herein, who entered the witness box. Therefore, the learned Magistrate was constrained to pass an order closing the right of the complainant to cross-examine respondent NO.2-original accused who entered the witness box. Thus, it is clear that what is deposed to by her before the Court .....

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..... who herself entered the witness box and, therefore, the deposition has gone unchallenged. At the same time, learned Judge while acquitting the accused, recorded sound reasons in paragraph 12 recording the part of the cross-examination, where the complainant has given certain admissions suggesting that ₹ 3 lakhs were returned back and again she borrowed ₹ 2 lakhs and out of those ₹ 2 lakhs, the impugned cheque is of ₹ 1,50,000/- issued by her. As recorded in the impugned judgment, according to the complainant the transaction of ₹ 3 lakhs and amount of ₹ 2 lakhs both are different. However, when he was cross-examined for the time period when ₹ 2 lakhs were advanced, the complainant had to admit that .....

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..... tion of ₹ 3 lakhs claimed in the complaint, notice as also the deposition, is already repaid through cheque and according to the complainant, the cheque in dispute came to be issued by the accused for that very transaction only. However, through the course of cross-examination, he had to admit that ₹ 3 lakhs were already paid but she again borrowed ₹ 2 lakhs. However, considering his cross-examination, the said facts are nothing but an improvement. If at all the 2nd transaction of advancing ₹ 2 lakhs subsequent to the 1st transaction, there is no mention about it either in the complaint, notice or even in the deposition. Still however, the complainant asserted to justify that the impugned cheque which is returned unp .....

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