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10.As per Para No.3 of complaint averments, after lapse of six months from the date of advancement of loan, the complainant demanded with the accused to make repayment. It is further admitted at that time, the accused had issued Ex.P1 cheque in favour of the complainant for Rs.4,00,000/- principal loan amount. Therefore, from the aforesaid admitted facts from April 2008 date of advancement of loan till issuance of Ex.P1 appears to be on 17.12.2008 for more than 8 months, the complainant was not having any documents in proof of advancement of the loan. The question arises at this stage is whether any prudent man will advance Rs.4,00,000/- hand loan without obtaining any documents from the borrower and Ex.P1 cheque was issued at the time complainant demanded repayment is unbelievable. Ex.P1 cheque amount not includes interest for the period April 2008 to December 2008 is the other suspicious circumstance appearing in this case of the complainant. Accused is not a relative of the complainant and therefore, why he didn't charge interest on the loan amount of Rs.4,00,000/- for the aforesaid period is not made known. A prudent man may not advance huge amount of Rs.4,00,000/- without charging interest almost for a period of 8 months. In this regard the complainant has failed to forward any satisfactory explanation.

15.A prudent man before advancement of the loan ascertains the purpose for which the loan is borrowed, financial capacity of the borrower to make repayment within the stipulated period. The complainant has admitted he is not an income tax assessee. Therefore, how he had mobilized huge amount of Rs.4,00,000/- in the month of April 2008 has to be explained by him. An income of Rs.4,00,000/- was a taxable income under Income Tax Act for the financial year 2008-09. During cross-examination complainant further admitted he had not seen the tiles shop of the accused situated at Kathriguppe, Banashankari III Stage, Bangalore. This admission leads to an inference that the complainant was not having acquaintance with the accused and he had never visited the shop of the accused. In the above circumstances he had advanced Rs.4,00,000/- hand loan to the accused in the month of April 2008 is unbelievable. During the cross-examination of PW.1 and in his oral evidence the accused was able to create a doubt regarding passing of consideration of Rs.4,00,000/- from the complainant was absent, doubtful and highly improbable. The complainant has not produced any bank account extract, bank pass book or other documents to prove his financial capacity to advance Rs.4,00,000/- hand loan to the accused by cash in April 2008. During the cross-examination the complainant further admitted he is not having any documents to show in April 2008 he had ready cash of Rs.4,00,000/-

The accused can take advantage of the inconsistency of the evidence of the complainant to show there was no legally enforceable debt. I have also referred the Judgment of the Hon'ble Apex Court reported in ILR 2009 KAR 1633 in Kumar Exports V/s. Sharma Carpets case. In Para No.20 of the aforesaid Judgment it is held as below:-

"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to de discharged by him. However, the Court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act".