TMI Blog2019 (10) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant, he would have raised the defence that said cheque not belongs to him and the same has not been done. The accused has not given any reply to the notice and also in the cross- examination, he categorically admits that the cheque has bounced on account of no sufficient fund in the bank account of the accused. Mere non-producing of the document before the Court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The accused ought to have rebutted the contention of the complainant by producing cogent evidence before the Court and mere denial is not enough. Hence, the Court below ought to have drawn the presumption against the accused that he did not give any reply to the legal notice, though admitted the returning of cheque. The very approach of the Trial Court is erroneous. In the absence of rebuttal evidence under Section 138 of the Negotiable Instruments Act, the Trial Court ought to have convicted the accused for the offence punishable under Section 138 of Negotiable Instrument Act - the Court below has not appreciated the evidence available on record in a proper perspective. The Court below has failed to take note of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court below has acquitted the accused. Hence, the present appeal is filed. 4. The contention of the appellant/complainant in the appeal is that the Court below has committed an error in not appreciating the evidence in a proper perspective and erroneously has come to the conclusion that he has not proved the transaction. The accused did not dispute the cheque and in the cross-examination also, he admitted the cheque and the Court below has failed to consider the same and committed an error in dismissing the complaint. 5. When this matter was listed yesterday, learned counsel for the respondent was absent. Hence, I have heard the arguments of learned counsel for the appellant. However, in order to provide an opportunity to the respondent, the matter was adjourned to today. Even today also, learned counsel for the respondent is absent. Hence, it is deemed that there is no arguments on behalf of the respondent. 6. Having heard the arguments of learned counsel for the appellant and also on perusal of the material available on record, the points that arise for consideration are: 1. Whether the Court below has committed an error in acquitting the accused for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also elicited that he has not produced any document to show that he was having the money to advance the amount. The Manager of the bank is also examined as P.W.2 with regard to the memo in terms of Ex.P2. 9. P.W.2 is a official of the bank. In the cross- examination of P.W.2, it is elicited that there is a difference in the signature in Ex.P1 and Ex.D4(a). He also admits that P.W.1 is also the account holder and he was doing the business from long back. 10. P.W.3 is an official of Canara Bank, who has produced the document as per Ex.P7. In his cross-examination, it is elicited that based on Ex.P2, he has issued Ex.P7. 11. The accused, who has been examined as D.W.1 in his evidence states that himself and complainant were having acquaintance with each other. It is also his evidence that he used to make the complainant to sit in the cash counter of the hotel. He also states that complainant has given notice earlier demanding the payment of balance amount of ₹ 1,24,000/- and thereafter, he has not taken any action against him. He also admits that complainant has issued notice against him when the cheque was returned. But he claims that when he received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughout in his cross-examination is that, he did not issue the cheque Ex.P1 and the signature available in Ex.P1 is forged and created by the complainant. If really, the accused did not made any transaction with the complainant, he would have given reply to the notice, Ex.P3 immediately when he received the same. In spite of service of notice, he did not give any reply. If no such transaction has taken place between the complainant, he would have raised the defence that said cheque not belongs to him and the same has not been done. 14. It is also important to note that in the cross- examination of D.W.1, he categorically admits that when the cheque given by him to the complainant was presented for payment, the same was returned with an endorsement 'insufficient funds'. When there is a clear admission on the part of the accused regarding returning of cheque given by him with an endorsement 'insufficient funds', the Trial Court ought not to have dismissed the complaint on the ground that the complainant has not proved his source for advancing a hand loan to the tune of ₹ 4,50,000/-, no doubt in the cross-examination of P.W.1, it is elicited that he has not p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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