TaxTMI 
TaxTMI 
2025 (8) TMI 889
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....Respondent No. 2/Accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [NI Act]. BRIEF FACTS: 2. The complaint under Section 138 of the NI Act before the learned Trial Court arose from an alleged friendly cash loan of Rs. 5 lakhs that the Appellant claims to have advanced to Respondent No. 2/Accused, on the latter's request, in October 2012, with a promise that the amount would be repaid by the second week of February 2013. Respondent No. 2/Accused is the daughter-in-law of the Appellant's elder brother-in-law (Jeth). 3. According to the Appellant/Complainant, in mid-February 2013, Respondent No. 2 handed over Cheque No. 958220 dated 01.03.2013, drawn on Punjab National Bank, in favour of the Appellant, towards repayment of the above loan. 4. Upon presentation, the cheque was returned unpaid on 08.03.2013 with the endorsement "Funds Insufficient". The Appellant then issued a statutory demand notice dated 19.03.2013 to Respondent No. 2. 5. Respondent No. 2 sent a reply on 30.03.2013, but no payment was made within the statutory period. Consequently, on 18.04.2013, the Appellant filed the complaint under Section 138 of the NI Act. ....
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....e cross-examination that the amount came from personal savings and monthly household monies provided by her husband and son, this assertion was found to be inconsistent, particularly in light of her admitted independent rental income of Rs. 1,20,000/- per month. 10. While acquitting Respondent No. 2, the learned Trial Court relied on the judgment of the Hon'ble Supreme Court in G. Pankajakshi Amma v. Mathai Mathew (2004) 12 SCC 83, wherein it was held that courts cannot enforce rights stemming from illegal or unaccounted transactions, and it also referred to the decision of a co-ordinate Bench of this Court in Kulvinder Singh v. Kafeel Ahmed 2013 SCC OnLine Del 34, which held that the non-disclosure of a cash loan in income tax returns can lead to an adverse inference regarding the genuineness and legality of the transaction, and additionally, the Court placed reliance on the judgment of the Bombay High Court in Sanjay Mishra v. Kanishka Kapoor @ Nikki 2009 SCC OnLine Bom 290, where it was held that cheques issued in relation to unaccounted cash dealings do not constitute a "legally enforceable debt or liability" as required under Section 138 of the NI Act. 11. On the above r....
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....lated and not strangers. It is argued that in such familial relationships, extending financial help out of personal savings and cash reserves is a natural act of trust and affection, and this background reinforces the genuineness of the Appellant's claim regarding the loan advanced to the accused. 16. Learned counsel for the Appellant/Complainant would submit that the onus of proving that the cheque was not issued towards a legally enforceable debt lies entirely on the Respondent No. 2/Accused, yet the learned Trial Court failed to appreciate that the Respondent No. 2/Accused did not discharge this burden. It is further contended that the only witness produced by the Respondent No. 2/Accused, apart from herself, was Ms. Shamita Sharma (DW-2), whose testimony completely contradicted the defence version, and as per the settled law laid down in Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, the presumption under Sections 138 and 139 of the NI Act is that a cheque is issued for discharging a debt or liability, which can be rebutted only through credible evidence, and similarly, in K.N. Beena v. Muniyappan (2001) 8 SCC 458, the Hon'ble Supreme Court held that a court must presume that a....
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....o. 2/Accused, she has not produced any supporting evidence, such as receipts, bank withdrawal records, or written or electronic communications, to prove the transaction, and she has also failed to specify the exact date of the alleged loan or discussed it with either her own family or the family of the accused. Furthermore, it is also submitted that there are inconsistencies in the timeline and the Appellant has committed forgery, as she initially mentioned a timeline for the alleged loan as October 2013 in her pre-summoning evidence before the learned Trial Court, however, later altered it by hand to October 2012 in the same document while filing this appeal. 21. Learned counsel for Respondent No. 2/Accused would reiterate that the cheque was not issued for any loan but was given as security to Ms. Samita Sharma, the Complainant's daughter-in-law, for a proposed purchase of Kundan jewellery worth Rs. 5 lakhs, and while the cheque had only the amount filled in, the payee's name and date were left blank; however, since the jewellery transaction did not materialize as the third-party buyer backed out, the Respondent No. 2/Accused requested the return of the cheque but was informed....
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....cheque's issuance, while the Appellant/ Complainant failed to establish the existence of any enforceable debt or liability beyond reasonable doubt, and therefore, the impugned judgment of the learned Trial Court, which dismissed the complaint, is well-reasoned and thus the present Appeal is liable to be dismissed. ANALYSIS: 26. The Court has heard both sides at length and carefully examined the pleadings, evidence led by both parties, impugned judgment and the written submissions filed post-hearing. 27. The present Appeal turns on the finding of the learned Trial Court that the alleged cash loan of Rs. 5 lakhs, being unaccounted money and in violation of Section 269SS of the IT Act, could not constitute a 'legally enforceable debt or liability' for the purposes of the NI Act. If this finding is correct, the Appeal fails; however, if it doesn't hold water, the liability of Respondent No. 2/Accused must be assessed based on the facts, evidence led by the parties before the learned Trial Court and applicable law. Thus, the matter requires determination under two issues: (a) Whether the alleged cash loan of Rs. 5 lakhs constitutes a 'legally enforceable debt or liabil....
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....Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106, where the Hon'ble Supreme Court elaborated on the nature and extent of scrutiny required by an appellate court when reversing an acquittal and convicting an appellant under Section 138 of the NI Act. The relevant paragraphs of the said judgment state as follows: "12. According to the learned counsel for the appellant-accused, the impugned judgment is contrary to the principles laid down by this Court in Arulvelu v. State, (2009) 10 SCC, because the High Court has set aside the judgment of the trial court without pointing out any perversity therein. The said case of Arulvelu related to the offences under Sections 304-B and 498-A IPC. Therein, on the scope of the powers of the appellate court in an appeal against acquittal, this Court observed as follows: (SCC p. 221, para 36) "36. Careful scrutiny of all these judgments leads to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate....
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....e onus would again shift to the complainant? ***** 15. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, apparent it is that the appellant-accused could not deny his signatures on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs 3 lakhs each. The said cheques were presented to the bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption." (emphasis supplied) ....
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.... 269SS of the Income Tax Act, Section 23 of the Contract Act would also come in the way of the plaintiff. This plea was rejected by the court. In para 7 of the judgment, the court observed: "... ... In reply to the plea of bar of section 269(SS) of the Income-Tax Act, this Court has rightly observed that the prohibition under the Act was against taking or accepting and not against giving the amount. In view of this, in my opinion, the plea of bar of section 23 of the Contract Act would not survive for my consideration.". 27. The earlier decision referred to in the above extract was the decision of the same court in Civil Revision Application No. 573/1990 decided by Suresh, J. 28. I may also refer to the decision of the Madras High Court in K.T.S. Sarma, Seshasayee Brothers (P) Ltd. v. Subramanian, Prop. Kumar Videos, 2001 SCC OnLine Mad. 520. This was a suit for recovery of money, which was decreed by the Trial Court. In appeal, the defendant raised the issue whether the amount advanced by the plaintiff by way of cash is legal and recoverable in view of Section 269SS of the Income Tax Act. The submission of the defendant/appellant was that the contract be....
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....tutional validity of Sec. 269 SS observed thus: - "The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure 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 sand 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 S. 269-SS was to curb this menance. 7. In the light of the observations of the Apex Court, it cannot but be said that Sec. 269-SS only provided for the mode of acceptance payment or repayment in certain cases so as to counteract evasion of tax. Sec. 269-SS does not declare all transactions of loan, by cash in excess of Rs. 20,000/- as invalid, illegal or null and void, while as observed by the Apex Court, the main object of introducing the provision was to curb and unearth black money. To construe Sec. 269-SS as a competent enactment declaring as illegal and unen....
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....er Section 271D. 24. However, Section 271D does not provide that such transaction would be null and void. The payer of money in cash, in violation of Section 269SS of the Income Tax Act can always have the money recovered." (emphasis supplied) 33. Relying on several authoritative decisions, including Sheela Sharma v. Mahendra Pal (supra), the High Court of Karnataka in Gajanan Kallappa Kadolkar vs. Appasaheb Siddamallappa Kaveri Criminal Revision Petition No. 2011/2013, Judgement dated 18.11.2022 emphatically held that Section 269SS of the IT Act is designed to regulate financial transactions and prevent tax evasion, but does not render cash transactions exceeding Rs. 20,000 inherently illegal or unenforceable. The relevant paragraphs of the said judgement state as follows: "18. Another defence taken and vehemently argued by the learned counsel for the petitioner is that, 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 by cheque or demand draft. Since the complainant has not paid the amount through the cheque or the demand draft, the alleged transaction cannot be called as leg....
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....r 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 12.07.2007 and reported in ILR 2007 KAR 3614, has observed in para 11 that the contravention of Section 269SS of the Act though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section 271D is whittled down by Section 273B, on proof of bona fides. It cannot therefore be said that the nature of the transaction brought before this court could be declared illegal, void, and unenforceable. 21. The Madras High Court in the case of K.T.S. Sarma, Seshasayee Brothers (P) Ltd. v. Subramanian, Prop. Kumar Videos reported in 2001 SCC Online Mad. 520. This was a suit for recovery of money, which was decreed by the Trial Court. In appeal, the defendant raised the issue of whether the amount advanced by the plaintiff by way of cash is legal and recoverable in view of Section 269SS of the Income Tax Act. The submission of the defendant/appellant was that the contract between the parties was unlawful, and the same was also hit by Section 23 of the C....
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.... (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 ......" 6. Section 271D provides for a penalty for failure to comply with the aforesaid provisions which reads thus: "271D. Penalty for failure to comply with the provisions of Section 269-SS - (1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty impossible under sub-section (1) shall be imposed by the Joint Commissioner." 7. A collective reading of both the aforesaid Sections would go to show that even though contravention of Section 269-SS of the IT Act would be visited with a strict penalty on the person taking the loan or deposit. However, Section 271D does not in any manner suggest or even provide that such a transaction would be null and void. The payer of money in cash, in violation of Section 269 SS of the IT Act can always have the money recover....
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....on to doubt the version given by the appellant that the cheque was issued in the discharge of a liability or a legally recoverable debt. The reasons for this are a number of factors which have been enumerated by the learned ACMM also. Some of them are that non-mentioning by the appellant in his Income Tax Return or the Books of Accounts, the factum of the loan having been given by him because by no measure, an amount of Rs. 9,00,000/- can be said to be a small amount which a person would not reflect in his Books of Accounts or the Income Tax Return, in case the same has been lent to a person. The appellant, neither in the complaint nor in his evidence, has mentioned the date, time or year when the loan was sought or given. The appellant has presented a cheque, which obviously is written with two different inks, as the signature is appearing in one ink, while the remaining portion, which has been filled up in the cheque, is in different ink. All these factors prove the defence of the respondent to be plausible to the effect that he had issued these cheques by way of security to the appellant for getting a loan from Prime Minister Rojgar Yojana. The respondent/accused has only to cre....
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....on 269SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only. 27. Section 271D of the Income Tax Act reads as under: "271D. Penalty for failure to comply with the provisions of Section 269SS - (1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner." (emphasis supplied). The Supreme Court then allowed appeal and set aside the conviction of the accused. 17. As already observed the judgment in Krishna Janardhan Bhat (supra), in so far as it relates to interpretation of Section 139 of the Negotiable Instrument Act, has been overruled by a three Judges Bench of the Supreme Court in Rangappa (supra). In Rangappa (supra) the Supreme Court was considering an appeal against conviction recorded by the High Court reversing an acquittal by the Court below for the offence punishable under Section 138 ....
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....hat (supra) was that advance taken by way of loan of more than Rs. 20,000/- was only to be made by way of an account payee cheque. He submitted that in Rangappa (supra) the Supreme Court was specifically considering the case of an advance of Rs. 45,000/- made in cash and yet the Supreme Court had upheld the conviction recorded. Thus even those observations based on the provisions of Section 269SS and 271D of the Income Tax Act made in Krishna Janardhan Bhat (supra) would stand impliedly overruled. I am entirely in agreement with the learned Counsel for the appellant because the Supreme court in Rangappa (supra) had specifically noted the judgment in Krishna Janardhan Bhat (supra). The Supreme Court had obviously noted the observations in para 26 in Krishna Janardhan Bhat (supra) that advance of more than Rs. 20,000/- was to be made only by way of an account payee cheque, and yet the Supreme Court accepted case of a complainant who claimed to have made an advance of Rs. 45,000/- in cash and proceeded to uphold the conviction, even though the case rested on the fact that cash advance of a sum more than Rs. 20,000/- was made. Thus, on this aspect also Krishna Janardhan Bhat (supra) st....
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....annot be a legally recoverable liability. If such liability is held to be a legally recoverable debt, it will render the explanation to section 138 of the said Act nugatory. It will defeat the very object of section 138 of the Act of ensuring that the commercial and mercantile activities are conducted in a healthy manner. The provision of section 138 cannot be resorted to for recovery of an unaccounted amount. A cheque issued in discharge of alleged liability of repaying "unaccounted" cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of section 138 of the said Act. Such an effort to misuse the provision of section 138 of the said Act has to be discouraged." (emphasis supplied). The underlined observations do not disclose as to where can one find a prohibition on recovering amounts not disclosed in income tax returns. With utmost humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. The entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for. ....
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....eading presumption under Section 139 of the Act, misreading provisions of Sections 269SS and 271D of the Income Tax Act, unmindful of the consequence that unscrupulous individuals go on signing cheques irresponsibly. When a person signs a cheque and delivers it, even if it is a blank cheque or a post dated cheque, presumptions under Section 118(b) and 139 of the Negotiable Instruments Act would have to be raised and would have to be rebutted by the aced, albeit by raising a probability. Unless the Courts start discouraging flimsy defences, acceptability of cheques would not increase. The problem of unaccounted money would be reduced if transactions take place by cheques. Even a cash advance when repaid by cheque gets accounted. Making it unrecoverable, would only push the persons to extra judicial methods of recovery. The Courts would thus not only be defeating the object of the provision but also indirectly be party to increase lawlessness. This, in my humble view, cannot be allowed by Courts. (emphasis supplied) 36. The combined effect of these authoritative judgments unequivocally establishes that Section 269SS of the IT Act is a regulatory provision aimed at ensurin....
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....ext, drew adverse inferences from the respondent's admission of unaccounted chit-fund transactions. The ratio of that decision cannot be imported to cases like the present one. In this regard, Para 9 of the said judgement clears the factual scenario, which states: "9. We have heard the learned counsel for the parties. In our view the trial court was absolutely right. The 1st respondent is a moneylender. He has admitted that he earned Rs 30,000 from moneylending business. As a moneylender he is statutorily bound, by virtue of Section 9 of the Kerala Moneylenders Act, 1958, to maintain books of accounts. His statement that he has not maintained the records which could be produced in court is very significant. That statement coupled with the further statement that both the parties had agreed that these were to be unaccounted transactions required the court to draw an adverse inference against him. Of course, under Section 118 of the Negotiable Instruments Act the court is to presume that a negotiable instrument has been executed for consideration. However, in this case it has been established that there were chit-fund transactions between the parties. It is also established t....
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....in the books of account but nothing of that sort has been done in the instant case. Obviously, this clearly creates a doubt regarding the truthfulness of the stand taken by the petitioner that he had advanced a loan of Rs. 9,30,000/- to the respondent. Moreover, the presumption of law which is to be drawn in favour of the drawee of the cheque, namely, the petitioner, that the cheque has been issued to him for the valid discharge of his debt, gets dislodged by a plausible explanation furnished by the respondent/accused wherein he states that he was a member of a committee where he was contributing an amount and the petitioner used to take two duly signed cheques from each of the member. These facts get verified from the testimony of two other independent witnesses DW-2, Gulam Moinuddin and DW-3, Masoom. Their testimony has not been dented. So this clearly establishes that the petitioner was running some kind of committee and was taking two security blank cheques duly signed by the member. The respondent has taken the plea that he had issued two cheques in consecutive order sometime in the middle of the year 2004 when he was a subscriber to a committee. One cheque for a sum of Rs. 18....
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....872 ("the Evidence Act" hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the "legal burden" and it never shifts, the latter is called the "evidential burden" and it shifts from one side to the other. [See Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10] 29. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is ad....
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.... of presumption and shifting of onus of proof 33. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated-reference to one can be taken as reference to another] 34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been establishe....
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....proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441] 40. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words "until the contrary is proved" occurring in Section 139 do not mean that the accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa, (2019) 5 SCC 418]; see also Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513].....
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....he analogy can be extended and applied in the context of Section 139 as well. 44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption "disappears" and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. Basalingappa v. Mudibasappa, (2019) 5 SCC 418; see also, Rangappa v. Sri Mohan, (2010) 11 SCC 441." (emphasis supplied) 43. Turning to the facts of the present case, in her plea of defence dated 20.11.2013, recorded at the stage of notice under Section 251 CrPC, Respondent No. 2/Accused admitte....
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....thing suggests that any grievance was raised when the cheque was allegedly not returned. Reiteration of an uncorroborated narrative cannot, without more, discharge the Accused's rebuttal burden under Section 139 of the NI Act. 47. In an effort to bolster her stand, the Respondent No. 2/Accused examined Ms. Shamita Sharma as Defence Witness 2 (DW-2). Because her evidence is pivotal, it is reproduced verbatim from the deposition dated 09.08.2016 before the learned Trial Court: "DW-2: Ms. Shamita Sharma w/o Sh. Sanjay Sharma r/o H. No. 1580, Church Road, Kashmere Gate, Delhi. On SA My mother in law / complainant Mrs. Uma Lata Sharma lent some money to accused Namita Sharma. I do not know the date when the said transaction took place because it did not happen in my presence. I am doing the business of Kundan Jewellery since 2012 under the name and style of "MEHRUNISHA". My sister in law namely Jyoti does not assist me in my business. Vol. She was present in one of my exhibition. I have no dealing with the accused. It is incorrect that cheque in question was handed over to my mother in law in my presence or that the same was blank and only the amount was me....