TMI Blog2021 (7) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence placed by the complainant himself. The complainant has failed to establish his financial capacity to advance loan. Hence, it cannot be presumed that the cheque was issued in discharge of legally enforceable debt or liability. As such, the presumption under Section 139 of the N.I. Act stands rebutted and the accused by cross-examining the complainant, has rebutted the said presumption. As such, the appellant/complainant has failed to substantiate the contention that the cheque was issued towards legally enforceable debt, which is a mandatory requirement for attracting the offence under Section 138 of the N.I. Act. The learned Magistrate is justified in answering point under consideration in the negative - Appeal dismissed. - Criminal Appeal No. 200008/2016 - - - Dated:- 28-6-2021 - Rajendra Badamikar, J. For the Appellant : J. Augustin, Advocate For the Respondents : Sunil Kumar P. Bangari, Advocate JUDGMENT Rajendra Badamikar, J. 1. The appellant herein is the complainant before the Court of Civil Judge and JMFC at Yadgiri (hereinafter for short, referred to as 'trial Court') has filed this appeal under Section 378(4) of Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The plea of the accused was recorded for the offence under Section 138 of the N.I. Act and accused pleaded not guilty. Then the complainant was got examined himself as PW. 1 and placed reliance on five documents marked as Ex. P1 to Ex. P5. Thereafter, the statement of accused under Section 313 of Cr.P.C. was recorded and the case of the accused was of total denial. The accused was also got examined himself as DW. 1 and placed reliance on a document as per Ex. D1. 5. After hearing the parties on both sides, the learned Magistrate has framed the following points for consideration:- i) Whether the complainant proves beyond all reasonable doubt that the accused has committed the offence punishable under Section 138 of N.I. Act? ii) What order? 6. Thereafter, the learned Magistrate after appreciating the evidence led by the parties, vide his judgment dated 19.11.2015, answered Point No. 1 in the negative and resultantly acquitted the accused/respondent herein. Being aggrieved by this order of acquittal, the complainant has filed this appeal under Section 378(4) of Cr.P.C. 7. Heard the learned counsel appearing for the appellant as well as the counsel for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. According to him, loan was advanced on 10.01.2011. Further, the contention of the complainant is that, as the accused failed to repay the loan amount, he demanded the same and the accused has given a post-dated cheque. At the out-set, the complainant has not stated as to on which date, the cheque was handed-over to him. No doubt, the legal requirement of issuance of notice etc. have been complied. Further, the accused has not disputed the fact that the cheque belongs to him and bears his signature. As such, the presumption under Section 139 of the N.I. Act required to be drawn. However, it is not a conclusive presumption, but a rebuttable presumption. As per Section 139 of the N.I. Act, the complainant being the holder of the cheque and signature on the cheque having not been denied by the accused, the presumption shall be drawn that, the cheque was issued for discharge of any debt or other legal liability. However, the accused can rebut the said presumption regarding non-existence of liability, but at the same time, the complainant (prosecution) is required to prove his case beyond all reasonable doubt. But at the same time, the accused is not required to rebut the presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused. He further claimed that, some amount is received by him from his sister, which he has used for advancing loan to accused. But, he did not examine his sister also. There is no document to show that, he possessed 5.00 acres of land and the said land was sold, even prior to alleged transaction. 15. In the cross-examination, he admitted that, he is also a Director in the Solar System Company and he possessed 20% of sale. However, he claims that, though he was having 20% of shares, the accused has not given any profit from the Company till today and since he is a formal Director, as out of love and affection, he was adopted by accused as one of the Directors. He never said that, he has contributed for that Company, wherein he was working as a Director. Hence, cross-examination of PW. 1/complainant discloses that, his monthly income is hardly ₹ 20,000/- and it is hard to accept that, he could mobilise a huge amount of ₹ 12,15,000/- for advancing loan, that too without any security. No evidence is placed before the Court to show that he was possessing land and he sold the land. 16. Learned counsel for the appellant/complainant has invited attention of the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 12,15,000/-, has not produced any other document in that regard. Even he is unable to say as to what was the sale consideration of his land, which disclose that the complainant does not have any financial capacity to mobilise a huge amount of ₹ 12,15,000/-. The loan was said to have been advanced in 2011, and in 2011, ₹ 12,15,000/- was a huge amount. Even though he claims that, he was a Director of Solar System Company along with accused, but, he has not invested a single pai. Under such circumstances, the contention of the learned counsel for the appellant that, 'Ex. D1 establish the financial capacity of the appellant/complainant', holds no water, as it is only a guarantee latter and it does not establish his financial capacity to advance loan. Further, the said letter was of the year 2009 and the alleged transaction is of the year 2011. Learned counsel for the appellant/complainant has contended that, the accused/respondent has admitted issuance of the cheque and asserted that the cheque was issued towards renovation of the Company. But, the cheque was issued in his name and pertaining to his personal account and it is not the cheque issued on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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