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TMI Blog2022 (1) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 of Negotiable Instruments Act. The allegation of the respondent/complainant is that on 01.04.2008, the petitioner/accused borrowed a sum of Rs. 4,00,000/- from the respondent on the assurance that he would repay the same within a period of two months. In view of an understanding between the parties, the amount does not carry any interest. On 03.06.2008, the petitioner issued a cheque for Rs. 4,00,000/- drawn on ICICI Bank, Mysore Branch, in favour of the respondent/complainant for the purpose of discharging the loan amount of Rs. 4,00,000/-. When the cheque was presented by the respondent/complainant on 14.07.2008, it was returned as 'Funds Insufficient'. The return intimation was received by the respondent/complainant on 22.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.No.18 of 2014 and the appeal was also dismissed on 28.01.2015. Aggrieved over that, the petitioner/accused has preferred this Criminal Revision Case before this Court. 5. Point for consideration: Whether the conviction and sentence of the accused for the offence under Section 138 of Negotiable Instruments Act, by the learned Sessions Judge basing on the materials available on record is fair and proper? 6. Heard the learned counsel for the petitioner and the learned for the respondent. 7. The learned counsel for the petitioner submitted that the respondent/complainant was working as a Supervisor under him and during that relevant period, he managed to steal the cheque belonging to the petitioner and he misused it for the purpose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it contained his signature. But the only contention of the petitioner is that the respondent did not have the financial capacity to lend the sum of Rs. 4,00,000/- as claimed by him. He has also raised a technical point that the pre-litigation notice contemplated under Section 138(b) has not been duly served on him and that would vitiate the proceedings. 10. As per Section 139 of Negotiable Instruments Act, if the executant of the cheque does not deny its execution, it has to be presumed that the cheque amount has been given only for the purpose of discharging legally enforceable debt payable to the holder of the cheque. Though the complainant gets this presumption in his favour that can be rebutted by the accused by producing the proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Though it is the contention of the learned counsel for the petitioner that it is unbelievable that the sale consideration which was got in the year 2002 was kept in the hands of the respondent or his father till the year 2008 and the same was utilised for lending loan to the petitioner, it is the option of the respondent or his father to utilise the sale proceeds in the manner preferred by them. Thus, prima facie proof is shown by the respondent/complainant to show that he had the background to lend a sum of Rs. 4,00,000/- to the petitioner/accused. The initial presumption coupled with the supporting evidence will strengthen the case of the complainant and make the initial presumption culminated into the conclusive proof, in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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