TMI Blog2022 (9) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... d presumptions are rebuttable presumptions. Apart from that, it is also important to note here that the complainant is required to prove his case beyond all reasonable doubt - If the accused is able to create some dent in the case of the complainant, then the statutory presumption stands rebutted and the burden again shifts on the complainant. The offence under Section 138 of the N.I. Act is attracted only if the cheque in dispute is being issued towards legally enforceable debt. In the instant case, though the complainant has asserted that he had advanced hand-loan of Rs. 1,35,000/-, the evidence discloses that, he has failed to establish his financial status to advance such a huge amount to the accused. Further, Ex. D3 discloses that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- for his Lathe business by promising to repay the same by 30.11.2005; that the complainant had advanced the hand-loan as sought by the accused and the accused has failed to keep-up his promise. On demand by the complainant for repayment of loan amount, the accused has issued a cheque dated 10.12.2005 for a sum of Rs. 1,35,000/- drawn on Federal Bank Limited, Rajajinagar, in favour of the complainant. When the said cheque was presented by the complainant through his banker, it was dishonoured for Insufficient Funds and immediately, the complainant has issued a legal notice to the accused and though notice was served on the accused, he did not respond. According to the complainant, the accused has issued the cheque towards legally enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal. 7. Heard the arguments advanced by the learned counsel for the appellant/complainant and perused the records. 8. Learned counsel for the appellant/complainant would contend that the accused has admitted his signature on the cheque and admittedly the cheque belongs to the accused. Hence, he would contend that, he is the holder of the cheque in due course and as such, there is a statutory presumption in his favour under Sections 118 and 139 of the N.I. Act and the accused has not rebutted the said presumption. He would also contend that the accused has taken-up the defence that, he had transacted with s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to prove his case beyond all reasonable doubt. But, however, the accused is not required to prove his defence on the same principle of beyond all reasonable doubt. But, he is required to prove his defence on the basis of preponderance of probabilities. If the accused is able to create some dent in the case of the complainant, then the statutory presumption stands rebutted and the burden again shifts on the complainant. 12. It is the defence of the accused that, he has issued 2 to 3 cheques in favour of one Sri. Vajravelu, who is the son-in-law of the complainant, as he has availed hand-loan of Rs. 35,000/- from him and he has already paid Rs. 10,000/- and in this context, he placed reliance on Exs. D1 D2. He would also contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined his son to establish that, his son has financially helped the complainant in advancing the alleged hand-loan or to prove financial status of complainant. 14. Very interestingly, in the entire complaint and in the evidence, the complainant has nowhere asserted the exact date of advancement of the hand-loan. It is simply asserted that, there was a demand by accused in June 2005 with a promise to repay by 30.11.2005. But, as to when exactly the hand-loan was advanced is not at all forthcoming in the entire complaint or in the evidence of the complainant. Even in the notice issued, there is no reference regarding specific date of advancement of loan. It is to be noted here that the complainant is a retired Government employee. Thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, Ex. D3 discloses that, on behalf of Vajravelu, notice has been issued to the accused for repayment of the hand-loan. Though it is asserted that Ex. D3 is a concocted document, but to substantiate the same, the complainant ought to have examined his son-in-law Sri. Vajravelu. But, no attempt has been made. Exs. D1 and D2 establish that some amount is paid to Vajravelu, the son-in-law of the complainant. Looking to these facts and circumstances, it is evident that the defence raised by the accused is more probable than that of complainant, as the complainant has failed to prove his financial status. Further, it is hard to accept that, he had advanced such a huge amount without there being any security or agreement, that too without c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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