TMI Blog2020 (2) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... g evidence of himself that he has not borrowed money from the appellant, presumption under Section 139 of the Act, 1881 will survive and remain exist and corroboration to the statement of the appellant is not required. From the evidence of the appellant, it is clearly established that respondent had earlier taken amount of ₹ 3,14,000/- from him which was returned by him. Appellant is running business of of railway machinery and advancing sum to respondent in earlier occasions which shows that he is capable to advance money to the respondent, therefore, it is not a case where source of income of the appellant is not established. The amount was advanced on the basis of personal relation, therefore, preparation of other documents was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the railway obtained by the respondent. Appellant provided money to the respondent, therefore, cordial relationship was built up between the parties. When respondent obtained new contract from South Eastern Central Railway, Bilaspur, then he demanded loan from appellant and appellant gave him loan to the tune of ₹ 13,69,410/-. The respondent returned the amount of ₹ 3,69,410/- to the appellant by cash and bank account and for remaining loan amount he gave a cheque bearing No. 887961 dated 2-5-2016 to the tune of ₹ 10,00,000/- of Axis Bank of Bilaspur to the appellant as per Annexure A/3. Appellant produced cheque for encashment but the cheque has been returned with endorsement that fund is insufficient in the account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. 4. On the other hand, learned counsel for the respondent submits as under: I) Appellant has deposed before trial court that the amount in question is shown in income tax return and in record of Prabha Sales, but income tax return or the account of Prabha Sales is not produced and further audit account is not produced, therefore, the trial court is right in holding that the appellant failed to discharge that cheque was issued in discharge of liability. Iii) The story put-forth by the appellant is after-thought , therefore, the trial court is right in deciding the issue against him. The trial court has rightly evaluated the evidence, therefore, same is not liable to be interfered with while invoking jurisdiction of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 10,000,00/- which was received by him on 31-5-2016. Inspite of receiving notice, he did not return the amount that is why complaint was filed against him on 16-6-2016. Version of this witness is supported by cheque Ex.P/1, Memo of dishonouring of cheque Ex.P/2, notice issued to respondent Ex.P/3 and acknowledgement of receiving notice Ex.P/4. From the evidence of the appellant supported by document, it is established that cheque was issued in favour of appellant and same wad dishonoured and after receiving notice issued by the appellant, respondent did not respond to the notice and did not return the money. 8. As per Section 139 of the Negotiable Instruments Act,1881, It shall be presumed, unless the contrary is proved, that the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end only when contrary is proved by the accused/respondent. 10. In the present case, the trial court recorded finding that though the appellant deposed that the amount is shown in income tax return and account of Prabha Sales but the said income tax and account of Prabhas Sales was not produced, therefore, version of the appellant is not corroborated. In view of this court, the finding arrived at by the trial court is clearly against the legal aspect of the matter. When respondent has not denied by adducing evidence of himself that he has not borrowed money from the appellant, presumption under Section 139 of the Act, 1881 will survive and remain exist and corroboration to the statement of the appellant is not required. Corroboration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d same is perverse. Further, finding arrived at by the trial court is not legal and contrary to the provisions of the Act, 1881. In view of this court, argument advanced on behalf of the respondent is not acceptable and the case laws cited by the respondent are clearly distinguishable from the facts of the present case. The act of the respondent falls within mischief of Section 138 of the Act, 1881. 12. Accordingly, the instant appeal is allowed. Finding of the trial court is set aside. Respondent is convicted under Section 138 of the Negotiable Instruments Act, 1881. The date of issuance of cheque is 10-7-2015. Appellant is entitled to interest @ 6% per annum on the amount advanced by him. Accordingly, the respondent is sentenced to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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