TMI Blog2020 (12) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... account at Ex.P11 still shows a liability of ₹ 40,000/- as towards insurance deposit. No doubt, PW-1 attempted to patch up the said discrepancy by stating that a rebate has been given towards the said loan. However, the very same witness in the subsequent sentence has also stated the alleged rebate does not give the details as to towards which all acts and to what amount the rebate was given. It goes to show that since the accused in Ex.P11 has shown a sum of ₹ 40,000/- as a liability towards the insurance amount in spite of the admitted fact that the said amount was paid by the accused, the very correctness and trustworthiness of the statement of accounts at Ex.P11 becomes doubtful - Similarly the very same statement of accounts though gives a deduction of ₹ 1,57,434/- towards the receipt of monthly hire rentals but as was told by PW-1 in his cross-examination to a specific query by the accused, that the said statement does not give the complete details of how many instalments of what amount was received by the complainant from the accused. Therefore as rightly submitted by the learned counsel for the respondent, the correctness of the statement of accounts at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said notice, the accused failed to pay the dishonoured cheque amount. Hence, the complainant instituted a criminal case against her under Section 200 of the Criminal Procedure Code for the offence punishable under Section 138 of the N.I. Act. 3. In order to prove its case, the complainant - company examined one of its authorized signatories Shri K. Vasudeva as PW-1 and got marked documents from Exs.P1 to P11. Neither any witness was examined nor any documents were marked from the accused side. After hearing arguments from both side, the Trial Court by its impugned Judgment dated 24.05.2010 acquitted the accused of the alleged offence. It is against the said Judgment, the complainant has preferred the present appeal. 4. Respondent is being represented by her counsel. Trial Court records were called for and the same are placed before this Court. 5. Heard arguments from both side. Perused the materials placed before this Court. 6. The points that arise for my consideration are: (i) Whether the complainant has proved beyond reasonable doubt that the accused has committed the alleged offence punishable under Section 138 of the N.I. Act? (ii) Whether the Judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the respondent / accused in his arguments also fairly submitted that he would not dispute the alleged loan transaction with the complainant company. However, he only disputes the existence of any legally enforceable debt as on the date of presentation of the cheque at Ex.P1. From this, it remains as an undisputed fact that by virtue of the loan agreement as per Exs.P9 and P10, the accused had availed financial facility from the complainant -establishment which had taken over or cleared the loan liability of the accused with the UTI Bank. 10. Regarding the issuance of cheque at Ex.P1, the accused has not specifically denied or disputed the same. On the other hand, in the cross-examination of PW-1, the accused had made suggestion at more than one place to the effect that the cheque issued by the accused to the complainant was not as a repayment of the alleged existing loan. Accused also suggested to the witness that a blank cheque obtained from the accused in the beginning of the transaction was misused by the complainant in the form of present case. Though the witness has not admitted those suggestions as true, but by making those suggestions and by not denying the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the alleged liability of the accused towards the complainant. Certain discrepancies in the loan agreement itself at Exs.P9 and P10 were elicited in the cross-examination of PW-1 including that Ex.P10 is silent about who has paid the loan amount to whom and what was the alleged agreed rate of interest? It was also elicited in the cross-examination of PW-1 that the alleged premiums towards the insurance of the vehicle which was the subject matter of the loan transaction was paid by the accused. However from the accused side, it was also elicited from the very same witness in the cross-examination that the alleged statement of the loan account at Ex.P11 still shows a liability of ₹ 40,000/- as towards insurance deposit. No doubt, PW-1 attempted to patch up the said discrepancy by stating that a rebate has been given towards the said loan. However, the very same witness in the subsequent sentence has also stated the alleged rebate does not give the details as to towards which all acts and to what amount the rebate was given. This goes to show that though the alleged statement of accounts shows a rebate of ₹ 1,75,569/- but it does not specifically show as to how that am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved to be not safe to accept as a true account extract, then, it is highly doubtful as to the existence of the outstanding liability to an extent of ₹ 7,90,000/- (cheque amount) from the accused towards the complainant as on the date of the presentation of the cheque. Therefore the defence of the accused that there existed no legally enforceable debt equivalent to the cheque amount as on the date of presentation of the cheque gains more reasons to believe and accept, than believing the version of the complainant that the cheque amount was the outstanding liability from the accused. 18. Once the accused has successfully rebutted the presumption under S.139 of the N.I. Act, the onus shifts back to the complainant. However, the complainant failed to discharge its burden of proving the alleged liability from the accused, equivalent to the cheque amount. Considering the said fact, the Trial Court has rightly held that the complainant has failed to prove beyond reasonable doubt that the accused has committed the offence punishable under Section 138 of the N.I. Act. Since the said finding is based on the proper analysis of the materials placed in the matter by the Trial Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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