TMI Blog2019 (8) TMI 1719X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 1,00,000/- to the accused and he being the income tax assessee, not declared the said income to the Income Tax Authority and no documents were produced in the Court. Apart from that, he has not produced any document to show that he had cash in his possession to lend the same to the accused. Therefore, the contention of the complainant that the accused borrowed the amount and he was unable to pay the amount is not acceptable. In the case on hand, though the presumption under Section 118 R/w. Section 139 of the Negotiable Instruments Act exists in favour of the complainant, however, the accused is required to rebut the presumption available in favour of the complainant. The accused need not enter into witness box by letting evidence, but he can rebut the evidence of the complainant in the cross-examination. In this case, the accused is disproved the evidence of PW1 in respect of the existence of presumption in favour of the appellant/complainant and legally recoverable debt payable by the accused - when the accused/complainant himself is unable to show the source of income and capacity to pay and date of issuance of cheque throw suspicion and cloud in the evidence of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C., for short), before the 16th Addl. Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as 'the trial Court', for short) in C.C. No. 1375/2009. After taking cognizance, learned Magistrate registered a criminal case against the accused and he has been summoned to appear before the Court. The accused pleaded not guilty and claimed to be tried. The complainant got himself examined as PW1 and got marked in all seven documents. The accused, except cross-examining PW1, not let in any evidence. After considering the material on record, the trial Court convicted the accused and sentenced him to pay ₹ 1,10,000/- as fine and in default, to undergo simple imprisonment for one year and out of the said amount, he was directed to pay ₹ 1,06,000/- to the complainant as compensation. Being aggrieved by the judgment of conviction and sentenced passed by the trial Court, the accused filed an appeal before the first Appellate Court in Criminal Appeal No. 500/2009. After hearing the arguments of both sides, the first Appellate Court allowed the appeal filed by the accused by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Court and contended that the presumption has been rebutted by way of cross-examination and the accused need not enter into witness box for rebutting the presumption. When the complainant himself is not having capacity or any source of income to lend such a huge amount to the accused and he himself was an auto driver earning ₹ 350/- to ₹ 400/- per day, out of which he has to pay ₹ 150/- per day to the owner of the Auto Rickshaw and he himself was unable to purchase an auto rickshaw, the question of paying ₹ 1,00,000/- to the accused is not believable. It is also contended by the learned counsel that the complainant was not able to say on what date he has lent money to the accused. Even it is stated in the cross-examination that he gave the money in April, 2008, but no specific date has been mentioned and at one stretch he has stated that the amount has been given by him in his house and at another stretch he has stated that he went to the house of the accused and gave the money and no documents were produced before the Court to show the source of income and capacity of the complainant to lend money. Even though the complainant has stated the he is an inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused. The complainant reiterated the averments made in the complaint by examining himself as PW1. Admittedly, except cross-examining PW1 - complainant, the accused has not let in any evidence by entering the witness box and he has also not replied to the Legal Notice in spite of service of the Legal Notice. However, in the cross-examination, the complainant has stated that the accused is his neighbor and they were known to each other for last 10-12 years prior to the transaction and has stated that he is the auto driver and income tax assessee. But he has not declared his income or lending of loan to the accused in his income tax details. He has stated that he is having an income of ₹ 20,000/- per month and the said amount was kept by him in his house and not either borrowed from the bank or from anybody. Further he has stated that he gave the loan amount to the accused in his house and immediately again he has stated that he went to the house of the accused and paid the amount. At the time of paying the amount, no one is present and he has not received any acknowledgement from the accused while paying ₹ 1,00,000/-. 10. On perusal of these admissions by the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to lend ₹ 1,00,000/- to the accused and he being the income tax assessee, not declared the said income to the Income Tax Authority and no documents were produced in the Court. Apart from that, he has not produced any document to show that he had cash in his possession to lend the same to the accused. Therefore, the contention of the complainant that the accused borrowed the amount and he was unable to pay the amount is not acceptable. 11. Apart from that, in the cross-examination, the complainant has stated the accused gave cheque in November, 2008, but whereas, the cheque date is October 2008. There is clear contradiction between the oral evidence in the cross-examination and documentary evidence. In this regard, the learned counsel for the accused relied upon the judgment of the Hon'ble Supreme Court in the case of K. Subramani Vs. K. Damodara Naidu reported in (2015) SCC 99, wherein at para No. 9, it has been held as under: 9. In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of ₹ 14 lakhs is claimed to have been paid by cash and it is disputed. Both of them wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence of the complainant in the cross-examination. In this case, the accused is disproved the evidence of PW1 in respect of the existence of presumption in favour of the appellant/complainant and legally recoverable debt payable by the accused. 14. Therefore, when the accused/complainant himself is unable to show the source of income and capacity to pay and date of issuance of cheque throw suspicion and cloud in the evidence of the complainant. It is not possible to accept the evidence of the complainant that there is any legally recoverable debt payable by the accused and he had issued the cheque to discharge the amount to the complainant. 15. The learned counsel for the accused also strenuously argued that, even in the complaint as well as in examination-in-chief there is no clear averments that the complainant actually paid the loan amount to the accused. The same was suggested in the cross-examination and denied by PW1 - complainant. On perusal of the complaint as well as examination-in-chief, it is stated therein that the accused approached him for obtaining the loan and he has agreed to lend the said amount to the accused and he agreed to repay the same. There is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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