9911796707
TMI Blog2023 (5) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that complainant and accused are well known to each other. In the month of January-2013, accused approached the complainant for financial assistance of Rs.2,00,000/- to meet the family necessities. Complainant has paid the said amount and accused in order to discharge legally enforceable debt issued cheque bearing No.070787 drawn on Syndicate Bank for a sum of Rs.2,00,000/- on 19.4.2013. On the instructions of accused, the said cheque was presented for collection after 19.4.2013 and the said cheque was bounced for want of sufficient funds in the account of accused. Complainant has issued demand notice and the same is returned with an endorsement as 'not claimed'. Accused has not paid the amount covered under the cheque. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by reply to the notice challenging the source of income of complainant. Accused has also failed to substantiate her defence that cheque was issued to one Muralidhar Rao as security and the same was misused by the complainant to file this false case. The approach and appreciation of oral and documentary and finding recorded cannot be legally sustained. Therefore, prayed for allowing the appeal and to set-aside the judgment of the Trial Court and to convict accused for the offence punishable under Section 138 of N.I. Act. 7. In response to notice respondent appeared through counsel. 8. Heard the arguments of both sides. 9. On careful perusal of the oral and documentary evidence, it would go to show that accused in the month of January 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be drawn. It is now upto the accused to place rebuttal evidence to displace initial presumption available in favour of complainant. 11. In this context of the matter it is useful to refer the decision of Hon'ble Apex Court in 2019 Cr.R. Page No. 639 (SC), Basalingappa vs. Mudibasappa, wherein it has been observed and held that- "Presumption under section 139 is a rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence led by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish nexus between Sri.Muralidhar Rao and complainant, so that complainant can misuse the cheque issued by accused for the alleged transaction with Sri.Muralidhar Rao. Therefore, the said defence of accused cannot be legally sustained. 14. Learned counsel for appellant-complainant relied on the judgment of Hon'ble Apex Court in P.Venugopal V/s. Madan P Sarithi reported in Laws(SC) 2008-11-197, wherein Hon'ble Apex Court has affirmed concurrent finding of facts recorded by three courts below by negating the defence of accused. On the other hand, learned counsel for the respondent-accused relied on the judgment of Hon'ble Bombay High Court in Smt.Shobha V/s. Gajanan, wherein it has been observed and held that : "In a case under Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the cross examination admitted that he is uneducated and working as lineman on contract basis and gets salary of Rs.5,200/- per month. Looking to the said admitted source of income of complainant by way of salary in these hard days, it is very difficult to maintain himself, let apart his capacity to mobilize the funds of Rs.2,00,000/- for giving hand loan to accused. 17. In the absence of any tangible evidence on record with regard to source of income through agricultural land, it cannot be accepted that complainant get income from agricultural land and given the said money to his Junior uncle-Ramanna. Out of the said saved amount, he has given loan to accused. The material evidence that has been brought on record during the cross exam ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
