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TMI Blog2021 (8) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn on Vijaya Bank, Darbe Branch, Puttur. As per the instructions of the accused when the complainant presented both the cheques for its realization through its banker, the same returned unpaid with the banker's endorsement "account closed". Thereafter the complainant got issued a legal notice to the accused demanding the payment of the cheque amount. Since the accused failed to pay the cheque amount, the complainant was constrained to institute a criminal case against him in the Trial Court for the offence punishable under Section 138 of the N.I. Act. Since the accused pleaded not guilty, the trial was held wherein the complainant got herself examined as PW-1 and got marked documents from Exs. P1 to P8. The accused himself got examined as D.W.1 and got marked documents from Exs. D1 to D2(a). The Trial Court, after hearing arguments from both side and considering the material on record, by its impugned Judgment of conviction and Order on sentence dated 14.07.2011, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him accordingly. 3. Aggrieved by the Judgment of the Trial Court, the accused preferred an appeal in the Court of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint and evidence of the complainant is totally silent as to when the loan was given and why no documents were collected at the time of alleged loan to the accused. He submitted that the evidence of accused clearly goes to show that the complainant was totally stranger to him and that the accused had no necessity to avail any loan. He also submitted that the defence of accused goes to show that he had sold his building 'Gajana Tower" in the year 2005 itself. As such, there was no necessity to borrow any money by him. 10. Learned counsel for the respondent/complainant in his arguments submitted that the accused failed to rebut the presumption formed in favour of the complainant about the existence of legally enforceable debt. As such, both the Trial Court and Sessions Judge's Court have rightly held the accused guilty of the alleged offence. 11. A perusal of the trial court records would go to show that the complainant both in her complaint as well in her evidence as P.W.1 has not stated as to when the alleged loan of a sum of Rs. 5,00,000/- was given to the accused by her. She has only stated that accused had borrowed the said sum from her which the accused has categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduced to the complainant through one of the sisters of the accused, still it is hard to believe that the complainant who is a housewife lends a huge amount of Rs. 5,00,000/- to a stranger who is said to have been introduced by another lady, that too without any documentation. P.W.1 herself has stated that there are no documents towards the alleged transaction. Therefore, in the absence of any details as to when the loan was given when the cheque was given to her and also in the absence of any reason as to why no documents were made towards the alleged loan transaction, the case of the complainant that she had lent a sum of Rs. 5,00,000/- to the accused becomes doubtful. No doubt, admittedly the accused is the drawer of the cheques at Exs. P1 and P3 which came to be returned unpaid when presented for realisation by the complainant with the banker's endorsement that account was closed, as per Exs. P2 and P4 and thereafter the complainant got issued a legal notice to the accused as per Ex. P8 demanding the cheques' amount. These facts form a presumption in favour of the complainant about the existence of a legally enforceable debt. However, the said presumption is rebuttabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to when the alleged loan was given and when the cheque in question is said to have been given by the accused to her. Admittedly there are no documents with respect to the alleged loan. She has not even stated as to why no documentation of the alleged loan was made by the parties. Admittedly the accused was not a person well known to her rather as stated by the complainant herself, he was introduced to her only from the alleged sister of the accused. On the other hand the accused as D.W.1 has stated that the cheque in question was given to his cousin sister by name Anitha with whom his relationship has been strained. Further P.W.1 in her cross examination also could not identify the accused. Admittedly the complainant could not able to reveal the name of said alleged sister of the accused who according to her introduced the accused to her. Added to the above, according to the complainant, the loan was given to the accused for construction of a building complex by name 'Gajanana Tower'. The accused as D.W.1 has stated in his evidence that the construction of the said building Gajanana Tower had been completed in the year 2001 and he had sold the said building in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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