TaxTMI 
TaxTMI 
2022 (11) TMI 1564
X X X X Extracts X X X X
X X X X Extracts X X X X
....elow including the above case in Crl. R.P .Nos. 2011-2025/2013 in respect of dishonor of 15 cheques amounting to Rs. 1 lakh each, separate judgment is passed in each case.]. 2. The parties are referred to as per their ranks in the trial court. 3. The relevant facts of the case leading to this revision petition are as under: 3.1 The Complainant is the permanent resident of Anjaneya Nagar, Belgaum and the accused is his neighbour and close friend. The accused was running a business of Glass and plywood under the name and style "M/s. Gajanan Glass and Plywoods." In the month of January 2007, the accused approached the complainant seeking financial assistance of Rs. 15 lakhs to meet his personal commitments and for business purpose. As the complainant was on good terms with the accused, who was also a neighbour, he agreed to advance a hand loan of Rs. 15 lakhs to the accused. Between January 2007 and June 2007, he advanced a hand loan of Rs. 15 lakhs to the accused and that accused agreed to repay the hand loan within six months from the date of last advancement. However, after repeated requests, the accused issued 15 cheques for Rs. 1 lakh each toward....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erred this revision petition. 7. As per the order dated 25.06.2013, the sentence passed by the JMFC II, Belgaum, in C.C. No. 1592/2009 dated 09.09.2011, which was confirmed in Crl. A. No. 13/2012 on 31.10.2012 by the II Addl. District and Sessions Judge, Belgaum, was suspended and the petitioner was ordered to be released on bail on execution of a personal bond of Rs. 25,000/- with one solvent surety for the likesum to the satisfaction of the trial court. 8. On 02.09.2013, this Court passed an order stating that the petition is admitted subject to deposit of 50% of the cheque amount within 4 weeks. Further, it is ordered that the respondent be permitted to withdraw the same on such deposit upon furnishing security to the satisfaction of the registry. But the revision petitioner/accused has not complied with the order of this Court. Hence, on 02.06.2014, this Court has passed an order as under: "Office objections in all these cases not complied in spite of granting four opportunities. The order sheet discloses that the order was passed by this Court on 02.09.2013. Since that day, the petitioner never made any attempt to comply the office objections. No reasons also ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sued 15 signed blank cheques in favour of the complainant without receiving the amount from the complainant and all the 15 cheque leaves did not have one serial number sequence and had different numbers in the cheque leaves. The complainant has not shown the transaction of Rs. 15 lakhs in his income tax returns. In view of Section 269SS of the Income Tax Act, if the transaction amount is more than Rs. 20,000/-, such transaction shall be made through cheque or demand draft, but the complainant has stated that he has paid the amount of Rs. 15 lakhs in cash. Further, he has submitted that the accused need not enter the witness box to substantiate his defence. It is the duty of the complainant to discharge his burden as to the payment of the amount, but the complainant has failed to discharge his burden. Hence, he sought for allowing this revision petition. To substantiate his arguments he has relied on the following decisions rendered in the cases of GURUMALLESH v. G. RAMESH reported in 2019 Cr.R. 481 (KANT.) and LAHU v. DHANAJIIRAO RAMCHANDRA HAIBATI, reported in 2019 Cr.R. 461 (KANT.). 11. The nature of power of this Court in revision is the same as that of the Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... observed that the complainant has financial capacity to advance the hand loan to the tune of Rs. 15 lakhs to the accused and this version of the complainant is supported by Ex.P-6. Considering the facts and circumstances of the case and relying on the decision of the Hon'ble Apex Court in the case of RANGAPPA vs SRI MOHAN reported in AIR 2010 SC 1898, the courts below have come to the conclusion that the complainant proved the guilt of the accused. 15. It is the contention of the accused that the complainant has not pleaded as to the transactions of the debt and has prayed for the dismissal of this complaint. In this regard, I have gone through the latest decision of Hon'ble Apex Court in the case of P. RASIYA v. ABDUL NAZER AND ANOTHER [Crl. A. Nos. 1233-1235/2022] wherein their Lordships have observed as under: "By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... simultaneously, as complainant has failed to prove the existence of legally enforceable debt, the alleged act would not attract Section 138 of the NI Act, as it won't constitute an offence. Hence, the lower appellate court reversed the judgment of conviction. 16.1 Another judgment relied upon by the learned counsel for the revision petitioner in the case of LAHU v. DHANAJIRAO RAMCHANDRA HAIBATI reported in 2019 Cr.R. 461 (Kant.), the theory of defence pleaded is "lost cheques" and the accused was acquitted on the ground that there was a basic defect in the complaint itself for not pleading the transactions for lending amount. Therefore, on the basis of these decisions, this Court cannot interfere with the impugned judgment passed by the Courts below. 17. As regard to the non-production of bond said to have been executed by the accused, as admitted by P.W.1 in the cross examination, it is not fatal to the case of the complainant. When the complainant has discharged his burden that the cheques have been issued in discharge of legally enforceable debt, the burden lies on the accused to rebut the presumption under Section 139 of the NI Act. However, the accused has failed to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h loan or deposit, any loan or deposit taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment has fallen due or not), the amount or the aggregate amount remaining unpaid; or (c) the amount or the aggregate amount referred to in clause (a) together with the amount or the aggregate amount referred to in clause (b), is twenty thousand rupees or more: Provided that the provisions of this section shall not apply to any loan or deposit taken or accepted from, or any loan or deposit taken or accepted by- -- (a) Government; (b) Any banking company, post office savings bank or cooperative bank; (c) Any corporation established by a Central, State or Provincial Act; (d) Any Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) (e) Such other institution, association or body or class of institutions, associations or bodies which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the Official Gazette: Provided further that the provisions of this section shall not apply to any loan or deposit where the person fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the case of the ASST. DIRECTOR OF INSPECTION INVESTIGATION v. KUM. A.B. SHANTH [(2002) 6 SCC 259, the Apex Court upheld the constitutional validity of Sec. 269 SS and observed thus: the object of introducing Section 269SS is to ensure that a tax payer is not allowed to give a false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving a false explanation for the same. During search and seizures, unaccounted money is unearthed, and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends and it is easy for the so-called lender also to manipulate his records later to suit the plea of the tax-payer. The main object of Section 269SS was to curb this menace. As regards the tax legislations, it is a policy matter, and it is for the Parliament to decide in which manner the legislation should be made. Of course, it should stand the test of constitutional validity. 20. The High court of Karnataka in MR. MOHAMMED IQBAL vs MR. MOHAMMED ZAHOOR decided on 12th July, 2007 and reported in ILR 2007 KAR 3614 = 2008 (1) Kar.L.J. 338, has observed in para 11 that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...."In the present case, the object of the parties when the transaction was entered into cannot be said to be to circumvent or defeat the purpose of the Income Tax Act. The defendant would not have issued the cheque in question had the object of the loan transaction been to defeat the provisions of the Income Tax Act". 21.2 Hence, the said contravention of Section 269SS of the Income Tax Act does not make the alleged transaction void. The concerned authorities can take necessary action against the complainant for non-compliance of Section 269 of the Income Tax Act. Only on that ground, this Court cannot interfere with the impugned judgment passed by the Courts below. 22. Another contention of the accused is that the complainant was a Commercial Tax Officer at the time of alleged transaction and that the accused was the proprietor of M/s. Gajanan Glass and Plywoods. The complainant being the Commercial Tax Officer, has insisted the accused to issue 15 signed blank cheques of Rs. 1 lakh each for the purpose of paying tax in respect of the business of M/s. Gajanan Glass and Plywoods. Accordingly, the accused has issued 15 signed blank cheques and filed a false compla....