TMI Blog2021 (8) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant, 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 2005 itself - the question of he availing loan from the complainant to put up a construction does not arise. The complainant upon whose shoulder the burden of proving the alleged existence of legally enforceable debt was reverted, could not able to discharge the same. This aspect both the Trial Court and the Sessions Judge's Court failed to notice. On the other hand they were carried away by the fact that the accused was the drawer of the cheques in question which came to be returned unpaid when presented for realization and proceeded to hold that accused is guilty of the alleged offence. The revision petition is allowed. - Criminal Revision Petition No. 1042 of 2012 - - - Dated:- 23-7-2021 - Dr. H.B. Prabhakara Sastry, J. For the Appellant : Jagadieesha B. N., Advocate For the Respondents : B. R. Krishna, Advocate ORDER Dr. H.B. Prabhakara Sastry, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred this revision petition. 4. The Trial Court and the Sessions Judge's Court records were called for and the same are placed before the Court. Perused the materials placed on record. 5. Respondent is being represented by her learned counsel. Though the matter was listed for admission, with the consent from learned counsels appearing on both side the matter was heard for final disposal. 6. After hearing the submissions from both side, the point that arises for my consideration is, whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court? 7. The complainant who got herself examined as P.W.1 has reiterated the contentions taken up by her in the complaint even in her examination-in-chief also. In support of her contention she got produced and marked two returned cheques at Exs. P1 and P3, the two banker's endorsements at Exs. P2 and P4 and postal receipt and postal acknowledgement at Exs. P5 and P7 and a copy of the legal notice at Ex. P8. 8. The accused also got himself e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused when she claims to have given the said amount to the accused. Even according to the complainant, accused was not a known person to her for a long time. She has stated that accused was introduced to her by his sister which goes to show that the complainant claims that she knows the sister of the accused as well. Ironically the complainant could not give the name of said sister upon whose alleged act of introducing the accused she parted away with the huge sum of ₹ 5,00,000/- with the accused. The complainant has stated that she had forgotten the name of sister of the accused. She only stated that she used to sell sarees and came in contact with her. The complainant also has not stated that even the said alleged sister of the accused had no cloth stores or the shop to sell the sarees. She could not even give more details about the alleged introducer. This creates a doubt as to the alleged acquaintance of the accused with the complainant and it strengthens the contention of the accused that the complainant was a stranger to him. 12. The accused as D.W.1 in his evidence has stated that he has two elder sisters by name Latha and Usha. However, no suggestion was made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 418 with respect to Sections 138 and 139 of the N.I. Act, the Hon'ble Apex Court was pleased to observe that while prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities. In the case before it, the accused had challenged the Judgment of his conviction passed by this Court in a criminal appeal and thereby convicting the accused/appellant for the offence under punishable under Section 138 of the N.I. Act. Among the several of the discrepancies in the case of the complainant which the Hon'ble Apex Court observed, one of the discrepancy was that the complainant had not mentioned as to on which date the alleged loan of ₹ 6,00,000/- was given to the accused. With this, ultimately the Hon'ble Apex Court was pleased to allow the appeal and set aside the Judgment of the High Court and accordingly restored the Judgment of the Trial Court which had acquitted the accused for the alleged offence. 15. In Vijay Vs. Laxman and Another reported in (2013) 3 SCC 86, wherein also with respect to Sections 138 and 139 of the N.I. Act, the Hon'ble Apex Court was pleased to observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in on 09.06.2005 for a consideration. Therefore, the question of he availing loan from the complainant to put up a construction does not arise. Added to this, generally, no person would lend such a huge amount of a sum of ₹ 5,00,000/- as loan without ascertaining the purpose of the loan and confirming it and without verifying the relevant papers and many a times without any proper documentation. In the instant case, admittedly the complainant has not done any of such acts. According to the complainant her husband was working as a Chief Engineer in Electricity Department and she is a housewife. Still she is unable to ascertain the purpose of the loan and to have documentation of the loan transaction. These aspects makes the case of the complainant more suspicious which is sufficient to rebut the presumption formed in favour of the complainant. 16. The complainant upon whose shoulder the burden of proving the alleged existence of legally enforceable debt was reverted, could not able to discharge the same. This aspect both the Trial Court and the Sessions Judge's Court failed to notice. On the other hand they were carried away by the fact that the accused was the drawe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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