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5. To prove the source of funds for advancing the loan to the respondent, appellant examined two more witnesses namely Devender Singh (CW-2) and Raj Kumar (CW-3).

6. Devender Singh in his affidavit by way of affidavit (Ex.CW-2/1), stated that he was the cousin brother of Brijesh Kumar. That built up property bearing No. C-26B on a land area measuring 40 sq. yards i.e. 33.44 mtrs situated in abadi land of Mandawali Unchepur was sold to Smt.Krishna Devi and part sale proceeds of the said property went to the share of Brijesh Kumar by way of family partition. The said property was sold for a sum of ₹22 lakhs. Out of total sale proceeds, ₹8 lakhs was received vide cheque No.162130 dated 11th April, 2011 drawn on State Bank of India, ₹5 lakhs was received vide cheque No. 432498 dated 11th April, 2011 drawn on Punjab National bank and balance of ₹9 lakhs was given in cash. Aforesaid cheques were proved vide Ex.CW-2/B.

7. Raj Kumar in his evidence by way of affidavit (Ex.CW-3/1), stated that he was one of the attesting witnesses of all the documents executed between Devender Singh and Smt. Krishna Devi. He corroborated the version of Devender Singh.

8. Respondent, in his statement under Section 313 Cr.P.C. denied taking any loan of ₹14,40,000/- from the appellant. He also stated that the cheque in question was issued to the appellant as security for two committees which were being run by the appellant for a sum of ₹6,00,000/- each about 3 years ago approximately and he had given the cheque in blank signed condition.

9. Respondent examined himself as DW-1 wherein he reiterated the defence taken by him in his statement recorded under Section 313 Cr.P.C.

10. Learned counsel for the appellant submits that the capacity to pay loan has been duly proved. Appellant's uncle's son i.e. Devender Singh gave loan to the appellant which he gave to the respondent. Nothing has been elicited from the cross-examination of Devender Singh and Raj Kumar. The text message wherein the respondent admitted owing money to the appellant is exhibited as Ex.CW-1/7 which document has been admitted by the respondent in his cross-examination.

13. Thus once the complainant establishes the factual basis of existence of a legally recoverable debt it is obligatory on the Court to raise the presumption under Section 118 NI Act whereafter the onus shifts to the accused to rebut the same by preponderance of probability whether by leading defence evidence or on the evidence led by the complainant itself.

14. By examining Devender Singh the complainant has proved the source of money available to him and merely because the sale deed was not exhibited by Devender Singh is no ground to come to the conclusion that factual basis for establishing the legal liability has not been discharged. In his cross-examination complainant admitted that he was a stock broker and presently unemployed. The loan of ₹14,40,000/- was given in cash and he had not shown the same in the Income Tax Return. The same was not withdrawn from any account. He volunteered that he sold a property which was given as a gift to him by his uncle and from the said money he gave the loan to the accused. He admitted that there was no loan agreement between himself and Mr. Sushil Kumar.