TMI Blog2022 (7) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... d loan to Respondent No.1. In this context, it is to be noted here that, Respondent No.1 on 24th August 2005 itself had intimated the fact of loss or theft of her signed cheques/cheque book to the Manager of Central Bank of India, Sion Branch, Mumbai, by issuing a letter. She had also given intimation to the Manager of the said bank for closure of her bank account by a separate letter - the presumptions as contemplated under Sections 118 139 of N.I. Act are not available to Appellant. A minute scrutiny of the evidence on record leads to draw a safe inference to hold that, the Respondent No.1 has rebutted the statutory presumptions by leading cogent evidence in that behalf. Taking into consideration the defence put forth by Respondent No.1, it can further be inferred that the Appellant might have misused the lost or stolen cheques while initially issuing the statutory notice and subsequently lodging the present complaint. Perusal of entire record would clearly lead to a safe conclusion that, the Appellate Court has appreciated the evidence available on record in its proper perspective and has not committed any error either in law or on facts while passing the impugned Judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint under Section 138 of N.I. Act. 4. The defence of Respondent No.1 was of total denial. It was her further defence that, her signed blank cheques were stolen or misplaced from her shop and the said fact was intimated by her to her bank by letter dated 24th August 2005 and thereafter closed her account. That, Appellant thereafter misused the said blank cheque and filed present complaint to harass her. It is also her defence that, her husband expired on 1st August 2006 and after his demise her in-laws harassed her and drove her out of house. Her in-laws also snatched important documents and belongings lying in her house. That, as her husband was seriously ill and subsequently expired on 1st August 2006, she could not reply notice issued by Appellant. She has also stated that, immediately after loss/misplacement of her signed cheques / cheque-book, she immediately lodged a complaint (Exh.D-3) with Sion Police Station on 23rd August 2005 and therefore there was no question of issuing any cheque to Appellant on 23rd March 2006. 5. The Trial Court after recording evidence and hearing the learned Advocates appearing for the respective parties was pleased to convict Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh Hudan Anr., (2019) 10 SCC 287 (vi) Hemant Pavel Gracias Vs. Socorro Santan Fernandes, 2008(1) Mh.L.J. 505 He therefore submitted that, the impugned Judgment and Order be quashed and the Order of conviction passed by the Trial Court be restored by allowing present Appeal. 7. Per contra, Mr.Dave, learned counsel appearing for Respondent No.1 opposed the Appeal and submitted that, the First Appellate Court has rightly re-appreciated entire evidence on record and has recorded a finding that, Respondent No.1 has legally rebutted presumption under Section 139 of N.I. Act, which was in favour of Appellant. He submitted that, Appellant has failed to prove that, he ever advanced any friendly loan to Respondent No.1 and towards the repayment of legally enforciable debt or liability the Respondent No.1 had issued the cheque in-question. He submitted that, there are no merits in the Appeal and the same may be dismissed. 8. The Hon ble Supreme Court in the case of Kumar Exports Vs. Sharma Carpets, reported in (2009) 2 SCC 513 , in para No.20 has held as under :- 20. The accused in a trial under Section 138 of the Act has two options. He can either show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to the fact that, as to how he advanced friendly loan of Rs.5,00,000/- to Respondent No.1, i.e. in cash or by way of bank transfer. There is no agreement in writing on record or any receipt executed by Respondent No.1 towards acceptance of the said friendly loan. It is to be noted here that, the Appellant in his evidence has admitted that, his annual income was Rs.2,00,000/- and he is a income tax payer. He has not produced any evidence on record even to remotely indicate that, he was having Rs.5,00,000/- as surplus amount to advance friendly loan to Respondent No.1. He has also not pleaded in the complaint nor deposed in his evidence that exactly on what date or in which month, Respondent No.1 requested him to advance friendly loan of Rs.5,00,000/-. Appellant in his cross-examination has admitted that, he did not know husband of Respondent No.1. This important admission given by Appellant clearly indicates that, the family of Appellant and family of Respondent No.1 were not having close relations. It therefore indicates that, the Appellant did not have any personal knowledge about the family of Respondent No.1 and therefore it is difficult to even presume that Respondent No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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