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Thereafter, the complainant has got issued demand notice on 07.01.2019 to the accused by demanding the payment of the cheque amount, but inspite of the receipt of notice, he has not chosen to comply the demand, which gave raise to the cause of action to file this complaint.

11. In this scenario, if the documents placed by the complainant is scrutinized, the complainant in order to examine the compliance of statutory requirements as envisaged U/s.138 of NI Act, he got produced the Ex.P.1 cheque dt: 29.10.2018 and Ex.P.3 cheque dt:15.12.2018. The Ex.P.1 cheque is returned with an endorsement as Non CTS cheque as per Ex.P.2 and Ex.P.3 is being returned with shara as Account closed as per Ex.P.4, the return advise dt:17.12.2018. The Ex.P.5 is the office copy of the legal notice dt:07.01.2019, Ex.P.6 is the postal receipt and Ex.P.7 is the track consignment which indicates the delivery of the the legal C.C.No. 3671/2019 notice as dt: 18.01.2019. The present complaint is filed on 05.02.2019. A careful scrutiny of the documents relied by the complainant goes to show that, a statutory requirement of Sec.138 of NI Act is being complied with and this complaint is filed well in time. The complainant has discharged his initial burden by examining him as PW.1 and by producing the documents as referred above. Thus, complainant is entitled to rely on the statutory presumptions enshrined U/s.118 R/w. Sec. 138 of N.I.Act.

13. So here, it is relevant to note that, whether the accused by cross examining the PW.1 has really rebutted the presumption available under the law which requires due consideration. Here, it is undisputed fact that, the complainant and the accused are known to each other and it is also undisputed fact that, the cheques at Ex.P.1 and P.3 C.C.No. 3671/2019 belongs to the accused and also, signature appearing therein. It is also, undisputed fact that the cheque at Ex.P.1 is returned with shara as "Non CTS cheque as per Ex.P.2 and the cheque Ex.P3 is being returned with shara as "Account closed" at Ex.P.4. Here, the complainant by adducing his evidence has deposed about the accused approaching him and availing the hand loan of Rs.9,20,000/- from time to time ie., from the month of February 2016 to September 2018 for the development of his milk vending business and he issuing the cheques at Ex.P.1 and P.3 towards the discharge of the loan liability. But, here though the accused admits the relationship and so also, of he carrying on the business of milk vending, he totally denies the fact of he acknowledging Rs.9,20,000/- from the complainant, rather he claims that, he used to raise small amount of loan from Rs.50,000/- to Rs.1,00,000/- and he used to repay it with interest. He also claims that, while he raising a small amount of the loan, the complainant used to take two blank cheques, one for the principle amount and another for the interest. Thereby, C.C.No. 3671/2019 contending that, the accused is due only at Rs.1,00,000/- and questioning the financial capacity of the complainant, prayed to dismiss the complaint.

C.C.No. 3671/2019

16. Admittedly, if the case of the defence was required to be accepted, he ought to have made some efforts by replying the notice or ought to have demanded the complainant to return the disputed cheques at the particular point of time when he happens to have repaid the receipt amount or ought to have initiated some action before the jurisdictional police for not returning the disputed cheques. Absolutely there is no evidence placed by the accused to appreciate his defence. When, the very evidence available on record goes to indicate that, having the accused not made any sincere efforts as referred above, taking the above defence at this stage would certainly hold no force. It would not be wrong to say that, the defence raised by the accused appears only to avoid the liability under the cheques. Infact, when the accused claims that, he had issued the Ex.P.1 & P3 the disputed cheques towards the receipt of the principle amount of Rs.1 Lakh and another cheque towards the interest, he was supposed to establish this defence by placing the positive evidence, but by gathering the Ex.P1. & P3 the cheques alone, it again falsifies C.C.No. 3671/2019 the defence case. Because, if the accused had issued Ex.P.1 & P3 at a particular point of time, it should be either the CTS cheque or a Non CTS cheque. Because, there might be no possibility to issue one cheque as a CTS cheque and another as a Non CTS cheque. The issuance of Non CTS cheque is being discontinued from 31.12.2018.

17. Here, the Ex.P.1 the cheque dt: 29.10.2018 is being dishonored for the reason of it being "Non CTS cheque" and Ex.P.3 the cheque dt: 15.12.2018 is being returned with shara as "The captioned cheque deposited by you has been presented in CTS clearing and is returned by Bank of India for the reason 50 Account closed". So, again this evidence goes contrary to the defence case. Because, as said above, if the accused had issued the disputed cheques at a particular point of time towards the principle amount and towards the interest, he would have issued both the cheques which pertains to Non CTS cheque or the CTS cheque, but not one cheque which pertains to the Non CTS cheque and another C.C.No. 3671/2019 with CTS Cheque. Again, the defence raised by accused goes contrary to his case. Perhaps, the complainant has specifically deposed that, towards the discharge of the receipt amount, the accused happens to have issued the Ex.P.1 cheque dt: 29.10.2018 which is being dishonored for the reason as Non CTS cheque and on bringing the said fact to the accused, he happens to have issued the Ex.P.3 the cheque dt; 15.12.2018 which is being dishonored for the reason Account closed. To any stretch of the evidence placed by the accused, it cannot be construed that, the accused has issued both the cheques towards the security for the receipt of an amount of Rs.50,000/- to Rs.1,00,000/-. Therefore, by gathering the evidence available on record, it suffices that, the defence raised by the accused is not acceptable. When, the accused has utterly failed to establish the fact of he handing over the disputed cheques towards the principle and interest security purpose for the payment of Rs.50,000/-to Rs.1,00,000/-, an inference could be drawn that, unless there was a liability of Rs.9,20,000/- the accused could have not C.C.No. 3671/2019 issued the disputed cheques. By issuing the disputed cheques, the accused has admitted the liability of the amount referred therein. If this fact is taken into consideration, again an inference could be drawn that, unless the accused has acknowledged Rs.9,20,000/-, he would have not issued the cheques. If that is the case, a presumption could be drawn that, the complainant was able enough to lend Rs.9,20,000/- to the accused.