TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 695
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....an Magistrate, New Delhi, who has dismissed the Complaint bearing CC No. 5109/2017 under Section 138 of the N.I. Act. 4. The Complainant in his Complaint had averred that he had family relations with the Respondent/Accused, for last 3-4 years. On various occasions and especially on 20.08.2012 and 13.12.2012, the Respondent requested him for an advance of friendly loan in the sum of Rs. 20,00,000/- as he was in deep financial crises. He agreed to repay the loan by February-March, 2016. Since the Complainant was having friendly terms, he advanced the friendly loan of Rs. 20,00,000/- and to ensure the return of the said amounts, an Undertaking was executed by the Respondent, on both the dates. 5. As per the Complainant, a sum of Rs. 5,00,000/- was returned by the Respondent in September, 2016 and he promised to return the balance within 2-3 months. To establish his bona fide, he also handed over two cheques in the sum of Rs. 10,00,000/- and Rs. 5,00,000/- respectively, both dated 20.01.2017, with an assurance that the cheques on presentation, would be honoured. 6. The Complainant presented the two cheques on 27.01.2017 for encashment, but were returned unpaid vide Memo dated 02.02.....
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....the date. However, the said cheque also was not returned by the Complainant, on different pretext and excuses. 15. The Complainant was duly cross-examined by the Respondent. Thereafter, his Statement under Section 313 Cr.P.C. was recorded on 21.11.2019, on which he reiterated his defence as stated above. He further stated that he had made a Complaint with the Police about the cheques not being returned to him by the Complainant despite his request. He admitted receiving the Legal Notice of Demand. The Respondent did not lead any evidence and did not examine any witness in support of his defence. 16. The learned Metropolitan Magistrate considered the evidence on record and concluded that there was no document to corroborate the giving of loan of Rs. 20,00,000/- to the Respondent. Moreover, the alleged undertakings executed by the Respondent at the time of taking the loan, were reported by the Complainant, to have been misplaced. There was no record to corroborate the giving of loan to the Respondent, disbelieving the case of the Complainant. It was held that though the cheques admittedly had the signatures of the Respondent but he had successfully rebutted that there were existing....
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.... cheques Ex.CW-1/1 and CW-1/2 had been issued as security cheques in lieu of the Chit Fund Committee being run by the Complainant. Once, the Respondent had admitted issue of cheques under his signatures, he with a view to defraud the Complainant, took this defence of alleged Chit Fund Committee being run by the Complainant of which there is no proof. 23. The Complainant is a Mechanical Engineer working as a Senior Consultant with the Parker Company. No document has been produced by the Respondent in evidence of the alleged Chit Fund except a bald claim. The Complainant in his evidence had clearly deposed about his profession and had denied running any Committee from 2012 to 2016. The Respondent in his defence evidence, has also not been able to prove that any Committee was being run by the Complainant. 24. The Complainant has further alleged that the observations of the learned Metropolitan Magistrate that the cheques in question were actually issued in the year 2012 and 2014 as per the Respondent, which is corroborated by the Complaint made by the Respondent in the Police Station about the misuse of cheques in question. 25. It is submitted that the Respondent with an ulterior a....
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....de to the Case of Guddo Devi @ Guddi vs. Bhupender Kumar, Crl. Revision Petition No. 1246/2019, decided on 11.02.2020 wherein it was held that any person not disclosing the loan in the ITR, may attract imposition of penalties under the Income-Tax Act, but would not render the debt un-enforceable or preclude the lender from its recovery. The issuance of cheques for the amounts mentioned therein is not in dispute and is admitted by the Respondent. 29. In the end, it is contended that the Bank Statements produced by the Complainant, have not been appreciated in the right perspective. Furthermore, the bald defence of the Respondent that he had issued the cheques as security for Chit Fund Committee has not been proved by any cogent evidence. 30. The observations of the Supreme Court of India in the case of Basalingappa vs. Mudibasappa, (2019) 5 SCC 418, is not applicable to the present case as the defence of the Accused in the said case, was that the cheque amount was given to the Complainant by way of loan. When proceedings under Section 138 of N.I. Act were initiated, the Accused denied liability and raised a defence questioning the financial capacity of the Complainant. The Complai....
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....presumption of innocence of the Accused, which is further strengthened by the acquittal. If there are two views possible on the evidence adduced before the Trial Court and the view taken by the Trial Court is plausible view, then the Appellate Court must not interfere with such Judgment. 38. The Appeal could have been held maintainable only if the Appellant was able to show that the conclusions arrived at by the Trial Court, are perverse or there is misapplication of law or any other legal principle. Merely because another view is possible, the Judgment of acquittal cannot be set-aside as has been held in the case of Arulvelu and Anr. vs. State, 2009 (10) SCC 2006 wherein the earlier Judgment in Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450, was referred to with approval. 39. On merits, it is contented that the Complaint was filed in the year 2017, but according to the Complainant, he had known the Respondent since last 3-4 years. He also claimed to have close relationship with the Respondent, to whom he advanced Rs. 20,00,000/- as a loan. The closeness of the relationship between the parties can be assessed from the fact that during the period of 2012-2016, the Appell....
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....e would not be aware of the date and year, on which the loan was given. 46. Furthermore, according to the Complainant, he has retired as Mechanical Engineer and was working in Parker Company as a Senior Consultant in the year 2013-2014. It is difficult to accept that a person of such high education and placement, would violate the Section 269 SS of the Income-Tax Act, by paying such amount in cash. 47. Reliance has been placed on S.K. Jain vs. Vijay Kalra, 2014 (2) JCC 54 wherein this Court had held that no Agreement and Promissory Note executed at the time of loan of Rs. 31,00,000/- allegedly advanced by the Complainant became questionable, as under Section 269 SS Income-Tax Act, 1961, a loan of more than Rs. 20,000/- cannot be advanced and accept by way of a cheque, demand draft etc. The advance cash loan of more than Rs. 20,000/- is punishable. 48. The learned Metropolitan Magistrate has thus, rightly disbelieved the claim of the Complainant of having given a huge loan of Rs. 20,00,000/- in cash, without securing it by any document. 49. It is further asserted that according to the Complainant, the Respondent had promised to repay the loan amount in the month of February or M....
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....submitted that the present Appeal is without merit and is liable to be dismissed. 55. Learned counsel on behalf of the Complainant had argued on similar lines as the grounds agitated in his Appeal. It is submitted that in the light of the admissions of the Respondent that the cheques were signed by him and the amounts had been also filled by him in his own hand-writing, the onus was on the Respondent to prove through some cogent evidence in his defence. Though he claimed that these cheques have been issued on account of Chit Fund being run by the Complainant, but no cogent evidence has been led by the Respondent. He has miserably failed to prove any defence and therefore, the Complaint under Section 138 of N.I. Act, has been wrongly dismissed. 56. The Respondent had filed a Written Submission on the similar lines as his contentions raised in the Counter-Affidavit. 57. Submissions heard and the record perused. 58. It is not in dispute that two cheques of Rs. 10,00,000/- and Rs. 5,00,000/- respectively dated 20.01.2017, under the signatures of the Respondent, had been issued in favour of the Complainant, which on presentation, were dishonoured. 59. It is the settled law as has a....
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.... had to prove by cogent evidence. The first question which arises for consideration is when the amount had been taken out from his Account, what was the circumstances for giving the same in cash to the Respondent rather than giving the amount, through the cheque, especially when the amounts were allegedly taken out by him from his Bank Accounts. Specious defence had been suggested by the Complainant to the Respondent in his cross-examination, that he was dealing in the construction and Real Estate business and required the loan in cash. 65. However, these facts had been emerged for the first time only in the cross-examination of the Respondent, who had explained that he was not a Real Estate Agent or a Builder, but was a Contractor and was also running a boutique and was a LIC Agent. The learned Metropolitan Magistrate has, therefore, rightly observed that there was no cogent evidence led by the Complainant, to prove these cash handing over of the money as loan on 13.08.2012 and 12.12.2012, to the Respondent. 66. The next aspect of significance is that as per the Appellant, these two loans had been secured by the Receipts/Undertaking. The Complainant pertinently, had given the Lo....
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.... till 2013-2014, which implies that he would have been filing his regular Income-Tax Returns. No explanation whatsoever has been given by the Complainant as to why this loan amount, which had been withdrawn by him through self-cheques, was not mentioned in the Income-Tax Returns creating his case of advancing the loan as doubtful. 70. The Complainant had asserted that out of the Loan of Rs. 20,00,000/- a sum of Rs. 5,00,000/- had been repaid in February, 2016. The easiest way to prove the refund of the part loan amount was to produce some documents/Bank Statement in corroboration thereof. Pertinently, no such document or explanation has been furnished. 71. Furthermore, it is asserted that while making a payment of part loan amount, the Respondent had assured that he would return the balance amount in 2-3 months. However, there is no evidence to show that the Complainant pursued the Respondent thereafter, for the return of the remaining loan amount of Rs.15,00,000/-. The alleged cheques have been given on 20.12.2016 i.e. after about 10 months of alleged part payment which is difficult to comprehend. Not only this, the Loan was taken in August, 2012 and December, 2012. It indeed a ....