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Showing contexts for: "Inconsistent Defences" in Mr. Vinay Shiva Gowda vs Mr. Avinash Kumar P Ghatge on 14 December, 2023Matching Fragments
NC: 2023:KHC:45609
9. The learned counsel for the appellant would contend that on 05.02.2016, an amount of Rs.9,50,000/- was advanced to accused and the same was repaid through cheque under Ex.P1, but the cheque was bounced. It is also asserted that the signature on the cheque and that the cheque belongs to the accused are undisputed facts and thereby the presumption under Section 139 of N.I.Act is in favour of the complainant, which is not at all rebutted by the accused. He would also contend that the accused has taken inconsistent defences regarding he only acting as a surety by issuing a security cheque to the loan advanced to one Aslam and subsequently, during the course of arguments, he has set up a defence of disputing financial capacity of the complainant. It is argued that the financial status of complainant was never challenged and the presumption under Section 139 of N.I.Act was never rebutted, which is mandatory NC: 2023:KHC:45609 and the learned Magistrate has erred in acquitting the accused only on the ground of financial status of the complainant, which was never challenged. Hence, he would seek for allowing the appeal by convicting the accused for the offences punishable under Section 138 of N.I.Act by setting aside the impugned judgment of acquittal.
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NC: 2023:KHC:45609 set up in the cross-examination of the complainant. Both the defences cannot go simultaneously. The burden is on the accused to rebut the presumption on the basis of preponderance of probability, but considering the inconsistent defences raised by the accused regarding availment of loan from the complainant and his wife, it is evident that he has failed to rebut the said presumption.
14. Apart from that, the accused has admitted in his cross-examination that he has received a legal notice issued as per Ex.P3 and he has not replied to the same. There is no explanation from the accused for not replying to the legal notice and he could have set up his defence in the reply notice itself, but after appearance, the accused is setting up two inconsistent defences.
15. Now the arguments were advanced regarding financial capacity of the complainant to