The court emphasized the importance of rebutting the presumption of a legally enforceable debt under the Negotiable Instruments Act, leading to the acquittal of the Respondent.

ASHUTOSH KUMAR , J.

1. The present leave to appeal is directed against the judgment and order dated 03.04.2012 passed by the Learned Additional Sessions Judge, Tis Hazari Courts, in Crl. A. No. 51/2011 whereby the judgment and order of conviction by the Trial Court namely, Metropolitan Magistrate, sentencing the Respondent no.1 to suffer Simple Imprisonment for 9 months and pay a sum of Rs. 15 Lacs as compensation to the complainant/petitioner and in default of such payment to undergo Simple Imprisonment for 3 months, has been reversed and the Respondent no.1 has been acquitted.

2. The dispute is between two real brothers over the issue of repayment of a loan which was given by the petitioner to the Respondent.

3. The facts of the case are as hereunder.

4. The petitioner advanced a loan of Rs. 5 Lacs to Respondent no.1 in the year 1991 for the purposes of helping him set up a business venture. The aforesaid loan was agreed to be repaid by the Respondent with interest at the rate of 12% p.a. accruing till the date of repayment. The Respondent issued a cheque on 20.04.1999 for an amount of Rs. 7,50,000/- in favour of the petitioner, payable at United Bank of India, Timarpur, Delhi towards repayment of the aforesaid loan along with interest. The cheque issued by the Respondent was not honoured because of insufficiency of funds in the account of the Respondent. The Respondent failed to pay the amount despite the legal notice and also denied, by way of reply to the notice, his liability to pay the amount. A complaint case thereafter was lodged. The Trial Court issued summons to the Respondent who pleaded not guilty and claimed trial.

5. In order to prove his case, the petitioner examined himself as CW1 and another witness Harinder Singh as CW2.

6. The petitioner, after recounting his case, deposed before the court that he did not remember the exact date when he had given Rs. 5 Lacs as loan to the Respondent no.1. He has admitted of being an income tax payee but did not show the amount of Rs. 5 lacs as loan in his income tax return of the corresponding year. The amount in question was paid from his and his wife’s personal savings, which amount was lying in his house. He did not obtain any receipt of the loan at the time of the payment. The annual income of the petitioner was stated to be, as per ITR return of 1991, Rs. 1,25,000/- p.a.

7. The petitioner has denied before the Trial Court the suggestion that he was working as Manager in Northern Railway Agency, Noida. The suggestion that he along with one Bharat Bhushan, had removed the blank cheques from the office of the accused/Respondent from his briefcase, was vehemently denied. He has further stated that he did not make any written demand, but only asked orally to return the amount. The Respondent/accused himself offered to pay Rs. 7,50,000/- which was accepted by him as full and final payment of all dues. The petitioner has denied that his wife Shashi had ever taken any loan from the Respondent/accused and that she owed any money to him. The petitioner has admitted that he used to do liaison work for the accused.

8. Harinder Singh, who was examined as CW2, has testified to the fact that petitioner was never employed with the Respondent/accused. He has deposed that the petitioner has a big business of forwarding agency with the railways.

9. The Respondent no.1 offered his evidence as DW3 by way of an affidavit. He has stated that his financial position was always better than the petitioner. The petitioner could not have advanced a loan of Rs. 5 Lacs. On the contrary, the Respondent no.1 gave loan to the petitioner and his wife in the year 1991 and 1992 to the tune of Rs. 41,000/-. The aforesaid advances were shown by the Respondent in his Income Tax Returns which was duly proved by Kailash Nath Bhargav, Advocate (DW2), who was the common advocate for the petitioner and the Respondent.

10. The Respondent has further stated that under certain circumstances, he had agreed