9911796707
TMI Blog2024 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... /complainant and his wife were known to the respondent/accused and that the respondent used to take financial assistance from petitioner's wife, which was duly returned. In January, 2012, the respondent approached petitioner's wife seeking a loan of Rs. 10,00,000/- as the respondent wished to purchase a flat in Rohini, Delhi. Consequently, the petitioner forwarded an amount of Rs. 9,00,000/- as loan vide two instalments: Rs. 5,00,000/- on 15.01.2012 and Rs. 4,00,000/- on 29.01.2012. At the time of the latter payment, the respondent also signed certain documents and also provided a promissory note. Thereafter, on one or another pretext, the respondent kept delaying the repayment but eventually on 07.07.2021, she issued 4 cheques (hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial placed on record. 6. Before proceeding to deal with the merits of the case, this Court deems it fruitful to restate the legal position regarding offences under Section 138 NI Act. An offence under Section 138 NI Act is made out, when the conditions stipulated in the proviso to Section 138 are satisfied. The first condition is that the cheque, which has been drawn on an account maintained by the drawer, ought to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, must make a demand for the said money by giving a notice in writing to the dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said cheques were given as a blank cheques. In support of her contention, the respondent apart from relying upon the cross-examination of CW1 (the complaint/petitioner), also examined DW2 (who proved the entry in roznamcha w.r.t the police complaint filed by the respondent against the petitioner and Ramesh) and DW3 (who deposed that he was present at respondent's house when she had handed over the cheques to Ramesh). On the question of non-production of Ramesh as a witness, the respondent argued that since the filing of the police complaint, whereabouts of Ramesh were unknown. 8. At the same time, the learned MM also observed that the petitioner had deposed that his monthly income was about Rs. 20,000/- to 25,000/- in 2012, when the allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision of acquittal, strengthens the presumption of innocence in the favor of the accused. At the same time, the appellate court, while considering a leave to appeal, has a duty to satisfy itself if the view taken by the trial court is both possible and plausible. The appellate court should be slow in reversing an order of acquittal passed by the trial court. [Jafarudheen & Ors. v. State of Kerala, (2022) 8 SCC 440,] The principles guiding the Court in such situations has been succinctly delineated by Supreme Court in Anwar Ali & Anr. v. State of Himachal Pradesh (2020) 10 SCC 166 in the following terms: - "xxx 14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in para ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
