TMI Blog2021 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... statement in the form of suggestion to PW-1 and through his evidence as DW-1, has not produced any corroborative material or evidence - the sole defence of the accused that the cheque in question was given to the complainant as a security in 2006 and the same was misused by the complainant in the year 2008, does not stand established. Added to this, admittedly, the accused has not taken any further action for the recovery of the said cheque from the alleged date of repayment, till the said cheque is alleged to have been misused by the complainant which was in the year 2008. No legal notice has been admittedly given to the complainant from the accused's side. No action for recovery, including lodging of any Police complaint has been initiated by him - the contention of the learned counsel for the petitioner/accused that, the accused has issued the cheque in question as a security to the complainant towards an earlier loan transaction in the year 2006, does not gain support to believe the same. Both the Trial Court as well as the Sessions Judge's Court have rightly held that the complainant has proved the alleged guilt against the accused, whereas, the accused could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 3,00,000/- from the complainant by cash in the month of April-2006 for his business commitments. The accused had promised to repay the said loan amount within six months from the date of availment of loan, however, he failed to repay the same. It is also the case of the complainant that, after persuasion, the accused issued a cheque bearing No.005507 dated 28-05-2008, for a sum of ₹ 3,00,000/- drawn on the Corporation Bank, Araga Branch, Thirthahalli Taluk, towards the repayment of loan amount. When the complainant presented the said cheque for its realisation, the same came to be dis-honoured and returned un- paid, with the banker's endorsement, Exceeds Arrangement . Thereafter, the complainant got issued a legal notice to the accused, demanding the payment of the cheque amount for which the accused sent an untenable reply. This made the complainant to institute a criminal case against the accused in the Trial Court for the offence punishable under Section 138 of the N.I. Act. 3. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried, as such, the Trial Court proceeded to record the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the said presumption is rebuttable. 10. In order to rebut the presumption formed in favour of the complainant, it is not mandatory that the accused should necessarily lead his evidence or produce any document from his side, unless the situation warrants him to do so. Otherwise, the accused can make out his case on preponderance of probabilities, thus to make the case of the complainant a suspicious one. Once the said presumption stands rebutted, the burden of proving the existence of a legally enforceable debt would be upon the shoulder of the complainant. In the instant case, it has to be seen whether the accused has successfully rebutted the presumption formed in favour of the complainant. 11. In the process of rebuttal of the presumption formed in favour of the complainant, the first contention taken up by the petitioner/accused much earlier to the filing of the present complaint by the complainant is, in his reply at Ex.P-6 to the legal notice sent by the complainant, contending that the cheque in question was given in its blank form, but duly signed by the accused to the complainant in April-2006, when the accused is said to have borrowed a sum of ₹ 50,000/- fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the accused as contended by him as a security to the complainant in the year 2006. 13. The above observations also gains support from the fact that, admittedly, the accused, except for the first time, coming with the plea of defence through his reply to the notice under Exhibit P-6, which is after June-2008, has admittedly not taken any steps to recover the alleged security cheque from the complainant at the earliest point of time. Incidentally, the accused also has not given any further details as to on which specific date the alleged previous loan of a sum of ₹ 50,000/- was taken by him and when he repaid the same and through what manner or more. He has also not produced any document to show the alleged loan details. Since the accused is expecting the complainant to produce some documents to prove the loan in question which is for a sum of ₹ 3,00,000/-, equally well, the accused is also expected to retain certain documents towards the alleged repayment of the previous alleged loan of ₹ 50,000/-. However, since it is the accused who has taken a contention that he has taken a previous loan from the complainant, which is ₹ 50,000/- and has repaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dealer in spare parts. The said contention has not been denied from the accused's side. Further, he has admitted a suggestion as true that the name of the shop of the accused is M/s. Ravi Tin Maker. Added to that, the complainant has also stated in his evidence that, the accused was the owner of a Bus. In addition to the same, the accused as DW-1, by himself, in his examination-in-chief has stated that, as on the date of his evidence, he is working as a Tin Maker. However, in his cross- examination, he has stated that, in the year 2003, he was running a Bus and he was the owner of two to three Buses. He has also got an immovable property. This go to show that the accused was not just a Tin Maker, having no income, but he has been a businessman and was also owner of Buses. Undisputedly, the accused and the complainant were known to each other since about ten years prior to the date of the complainant filing the complaint. Thus, when they are known persons to each other, which acquaintance according to the complainant, is a friendship between them, and also when the accused was the owner of an immovable property and also few Buses, no wonder lies in the complainant extending ..... 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