Sec.138& Sec.139 of N.I.Act - Issue of Cheque proved - Capacity to lent such huge amount not pleaded nor proved - Trial court dismissed complaint as the complainant failed to prove legally enforceable debt - High court went wrong and remanded the case - Apex court set aside the same -2015 S.C.-MSK LAW REPORTS 19



The  trial  court  correctly held
that the complainant had no source of income to lend a sum  of  Rs.14  lakhs
to the accused and he failed to prove  that  there  is  legally  recoverable
debt payable by the accused to him and that in discharge of  said  liability
he issued the cheque and accordingly acquitted the accused  for the  alleged
offence  under  Section  138  of  N.I.  Act.

  The source claimed  by
the complainant is  savings from his salary and  an  amount  of  Rs.5  lakhs
derived by him from sale of site No.45 belonging to  him.   

 Neither  in  the
complaint nor in the chief-examination of  the  complainant,  there  is  any
averment with regard to the sale price of site No.45.   

 The  concerned  sale
deed was also  not  produced.  Though  the  complainant  was  an  income-tax
assessee he had admitted in his evidence that he had not shown the  sale  of
site No.45 in his income-tax return. 

 On the  contrary  the  complainant  has
admitted in his evidence that in the year 1997 he had  obtained  a  loan  of
Rs.1,49,205/- from L.I.C. 

 It is pertinent to note that the alleged  loan  of
Rs.14 lakhs is claimed to have been  disbursed  in  the  year  1997  to  the
accused.  Further  the  complainant  did  not  produce  bank  statement   to
substantiate his claim.  

 The trial court took into account the testimony  of
the wife of the complaint in another criminal  case  arising  under  Section
138  of  the  N.I.  Act  in  which  she  has   stated   that   the   present
appellant/accused  had  not  taken  any  loan  from  her  husband.    On   a
consideration of entire oral and documentary evidence  the trial court  came
to the conclusion that the complainant had no  source of income  to  lend  a
sum of Rs.14 lakhs to the accused and he  failed  to  prove  that  there  is
legally recoverable debt payable by the accused to him.-  2015 S.C. MSK LAW REPORTS 19 

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