TMI Blog2018 (8) TMI 2064X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant to do so - it was for the appellant to have taken appropriate steps to prove that the receipt was indeed signed and executed by the respondent. As no such steps were taken, the receipt at Exh. 31 could not have become a basis for the appellant to claim that the respondent had admitted of having taken loan from the appellant. The trial Court in the impugned judgments and orders has taken into consideration the entire oral and documentary evidence on record. It was found that there were transactions between the parties pertaining to immovable property. It was found that the presumptions in the present case were satisfactorily rebutted by the respondent by responding to the statutory notice and also effectively cross-examining the appellant. It is settled law that an accused in such cases can rebut the presumption not only by placing on record positive evidence and examining witnesses, but also by discrediting the complainant by effective cross-examination - In the present case, the admissions given by the appellant in cross-examination read with the documents produced by the appellant herself, show that the entire story put forth on behalf of the appellant was not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent demanding payment of the amount stated in the said cheque. In response to the said notice, the respondent sent a reply notice dated 01.04.2014 stating that in the month of December, 2013, the appellant had stated that she would deposit an amount of ₹ 2,00,000/- in the account of the respondent against which she requested for three post dated cheques totalling ₹ 2,00,000/-. It was stated that due to good relations and trust between the parties, without seeking any further clarification, the respondent issued the aforesaid three cheques in favour of the appellant. It was indicated in the reply notice that it appeared that the appellant wanted to convert her black money into white and that, therefore, such a modus operandi was adopted by her. In this reply notice, the respondent specifically asked the appellant not to deposit the remaining two cheques that had been issued by the respondent. 6. Despite the said reply notice wherein the appellant had been called upon not to deposit remaining two cheques, the appellant went ahead to deposit the cheques, which were dishonoured. As a consequence, the appellant filed three complaints before the trial Court alleging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan amount to the respondent. It was pointed out that when the reply notice was issued by the respondent specifically giving his version of why the cheques were issued, the appellant ought not to have deposited the remaining two cheques. It was submitted that the respondent had denied his signature on the purported receipt at Exh. 31 and, therefore, it was for the appellant to prove that the said receipt was indeed signed by the respondent. The learned counsel also relied upon entries in the pass-book Exh. 30 produced on record on behalf of the appellant to show that the case of the appellant having advanced loan to the respondent was not made out. It was submitted that the material on record clearly proved the defence in rebuttal of the respondent on the touchstone of preponderance of probabilities and that when the trial Court had taken a possible view of the matter, no interference was warranted in the present appeals. 10. Heard counsel for the parties. The appellant has essentially relied upon the pass-book at Exh. 30, the receipt at Exh. 31 and the disputed cheques to claim that there was sufficient material to show that the cheques were issued by the respondent for dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant did have transactions pertaining to immovable property with the said Graceland Realities of which the respondent was admittedly an employee. 13. As regards payment of ₹ 51,000/- by cash on 05.09.2012, there is no evidence on record. In respect of claim of the appellant that she advanced ₹ 35,000/- on 10.11.2012 by cheque in favour of the respondent, there is no evidence on record because the pass-book at Exh. 30 pertains to entries starting from the date 28.02.2013. Thus, the claims made by the appellant in her oral evidence pertaining to advancing of aforesaid amounts to the respondent are not supported by documentary evidence on record. Even otherwise, the said amounts stated in the oral evidence of the appellant, add up to ₹ 2,01,000/- while the cheques in question, purportedly issued to repay the loan are only for an amount of ₹ 2,00,000/-. The difference in said two amounts is not satisfactorily accounted for by the appellant. In this situation, the proof of foundational facts pertaining to advancing of loan to the respondent have not been satisfactorily proved by the appellant. The presumptions under the said provisions of the Act would sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. It was found that there were transactions between the parties pertaining to immovable property. It was found that the presumptions in the present case were satisfactorily rebutted by the respondent by responding to the statutory notice and also effectively cross-examining the appellant. It is settled law that an accused in such cases can rebut the presumption not only by placing on record positive evidence and examining witnesses, but also by discrediting the complainant by effective cross-examination. 17. In the present case, the admissions given by the appellant in cross-examination read with the documents produced by the appellant herself, show that the entire story put forth on behalf of the appellant was not proved beyond reasonable doubt and that the respondent had successfully proved his defence on the touchstone of preponderance of probabilities. 18. Although the learned counsel for the respondent has placed reliance on various judgments, a reference to the same is not necessary because the present appeals have been decided on the facts, evidence and material produced by the appellant in support of her case. 19. In the light of the above, it is found that the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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