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2023 (1) TMI 928 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - rebuttal of presumption - whether non-mentioning of date as to when money was given can be fatal to the case of complainant or not? - HELD THAT:- The proviso 269-SS only prescribes the mode of taking or accepting certain loans, deposits and specified sum. The said proviso would speak to the effect that no person shall take or accept from any other person (herein referred to as the depositor). Mode of taking any loan or deposit or any specified sum, otherwise than by an account-payee Cheque or account or accepting payees and draft or use of electronic clearing system through a bank account. The proviso was inserted in the Income Tax Act debarring person from taking or accepting from any other person any loan or deposit otherwise than by account payee cheque or account payee bank draft, if the amount of such loan or deposit or the aggregate amount of such loan or deposit is Rs.10,000/- or more. The amount of Rs.10,000/- was later revised as Rs.20,000/- with effect from 01.04.1989. The said proviso does not prohibit for giving or lending loan, it is only taking and acceptance is prohibited. The acceptance of loan by way of cash in excess of Rs.20,000/- may attract panel provision in terms of Section 271-D. Whether the provisions of Section 269-SS of the Income Tax Act 1961, disentitles the plaintiff from filing recovery suits was directly under consideration by the coordinate bench of this Court in the decision MOHAMMED IQBAL VERSUS MOHAMMED ZAHOOR [2007 (7) TMI 711 - KARNATAKA HIGH COURT], wherein it has been held that The main object introducing the provisions of Section 269-SS of the Income Tax Act is to curb and unearth black money. But the Section does not declare the present transaction which is brought before the court illegal, wide and unenforceable. The accused has to establish the nexus between alleged taking loan of Rs.50,000/- and the issuance of signed Cheque as a security for the said transaction. Otherwise, accused cannot take the advantage of complainant admitting that he has received the Cheque as a security as referred above. The onus is on the accused to prove that he has issued signed blank Cheque as a security for the loan of Rs.50,000/-, which he claims to have repaid with interest amounting to Rs.2,50,000/- by way of DD dated 30.11.2009 drawn on Alahabad Bank - It is for the accused to offer reasonable explanation as to how the interest on Rs.50,000/- works out to Rs.2,00,000/- within a period of 3 years. In the absence of any reasonable explanation of paying such an exorbitant interest on the alleged loan of Rs.50,000/- totally amounting to Rs.2,50,000/-, it cannot be accepted that the accused has probalized his defence that he has issued the Cheque - Ex.P1 as security for the loan of Rs.50,000/-. The trial Court was swayed away by the eye-wash explanation offered by accused in the form of evidence of DW1 and Ex.D1 and has wrongly accepted rebuttal evidence to disprove the presumption available in favour of the complainant in terms of Sections 118 and 139 of N.I. Act. In the present case, the accused by way of rebuttal evidence has failed to probablize his defence to disprove the statutory presumption available in favour of the complainant in terms of Sections 118 and 139 of N.I. Act. The failure of the accused to place rebuttal evidence or the defence being found to be not legally sustainable in law, then it will have to be held that the complainant has proved the charge leveled against the accused for the offence under section 138 of N.I. Act. If the accused is sentenced to pay fine of Rs.2,00,000/- in default of payment of fine shall undergo imprisonment for three months is imposed would meet the ends of justice - Appeal allowed.
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