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TMI Blog2022 (6) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner borrowed a sum of Rs.9 lakhs and to discharge the debt, he gave the subject cheque. However, on presentation of the same, it was returned with an endorsement "Insufficiency of fund". Hence, statutory notice dated 20.11.2015 was sent to the petitioner, which was received by the petitioner on 23.11.2015. The petitioner gave a reply dated 26.11.2015 containing false averments denying the liability and alleging the subject cheque was issued to one Ravi in connection with the loan transaction for purchasing three vehicles. To discharge the loan, the vehicles were handed over to Ravi, who sold the vehicles and appropriated the proceeds for the loan amount. He did not return the cheque given as security. The said cheque is being filed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple Imprisonment was imposed. 6. The learned counsel appearing for the revision petitioner submitted that the appellate Court erred in reversing the well considered judgment of the trial Court. For advance of huge sum of Rs. 9 lakhs the complainant had no wherewithall. This has been raised in the reply notice itself. In spite of the said defence, the complainant has not produced any document to show, he had Rs.9 lakhs to advance loan to the accused/petitioner. In the cross examination, he has stated that he had given the entire loan of Rs.9 lakhs as cash in his house and the source of his income is 6 acres of agricultural land. Even for that he has not produced any document. Therefore, the trial Court has rightly held that by questioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4.That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden and not a persuasive burden. 25.5 It is not necessary for the accused to come in the witness box to support his defence. 30. ..............complainant financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial court's finding that the complainant failed to prove his fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he savings kept in the house and not drawn from the bank. Except he and the petitioner, none were present in his house at that time. Though he claims, he has 6 acres of land, he admits that he has not produced any document to show that he hold 6 acres of land. It is suggested in the cross examination to PW-1 that he has no source of income to advance loan of Rs.9 lakhs and that is the reason why he has not produced any document to prove his income. 11. The consistent defence of the petitioner eversince he received the statutory notice from the complainant/respondent is that there was no privity of contract and the cheque was not given to the complainant to discharge any legally enforceable debt and further, the complainant has no source of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving the fundamental fact regarding transaction, which has created an existing debt (or) his capacity to advance loan atleast equivalent to the amount found in the cheque. In this case, for the cheque amount is Rs.9 lakhs, no other previous existing debt (or) transaction claimed in the complaint. No evidence was produced by the complainant to prove his financial capacity to advance a huge sum of Rs.9 lakhs. 13. Taking into consideration his background admittedly a small time farmer holding 6 acres of land and not even a bank savings account claiming he advanced loan of Rs.9 lakhs as against the postdated cheque and no other document obtained for the money transaction, is obviously bound to be suspected. 14. For the said reasons, this C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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