TMI Blog2020 (2) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... e loan as not recoverable through a legal process. The payer of the money in cash in violation of Section 269SS of the Act, 1961 would, therefore, be entitled to enforce an agreement of advancement of money in cash beyond ₹20,000/-. Under Section 139 of the Act, 1881, there is a presumption in favour of the holder. Section 139 of the Act, 1881, stipulates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. It is also well settled that at the time of the consideration of the case for summoning, the merit of the case cannot be tested - In the case at hand, the respondent-complainant has proved prima facie the basic ingredients of the offence under Section 138 of the Act, 1881. It is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. The Court would not also examine the genuineness of the allegations made in the complaint, since the Court does not function as a Court of Appeal or Revision while exercising its jurisdiction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said cognizance order dated 16.05.2007, through Criminal Misc. Application No.669 of 2007, Alok Verma Vs. State of Uttarakhand and another, on the ground that the respondent-complainant examined his power of attorney holder under Section 200 of Cr.P.C. This High Court decided the said Criminal Misc. Application on 16.04.2012, whereby the cognizance order was set aside with the direction to the learned Magistrate to proceed with the complaint after recording the statement of the complainant and pass appropriate orders. Thereafter, the respondent-complainant filed his affidavit under Section 200 of Cr.P.C. After considering the matter afresh, the learned Magistrate passed the order on 16.01.2013, whereby the present applicant-accused was summoned under Section 138 of the Act, 1881. Against this summoning order, the present applicant preferred a criminal revision. The learned Additional Sessions Judge decided the same on 28.06.2014, whereby the revision had been rejected. Hence, the present application has been filed. 4. Mr. Rakesh Thapliyal, the learned Senior Counsel submits that the summoning order had been passed without applying the judicial mind; the Magistrate was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of ₹8.75 Lakhs was given in cash as alleged by the respondent in the complaint, therefore, in the light of the provisions of Section 269SS of the Act, 1961, the impugned summoning order dated 16.01.2013 is bad in law. However, the said plea was not taken by the applicant in the earlier criminal misc. application filed by him and there is no explanation from the applicant as to why this plea was not taken in the earlier application. 8. Chapter XXB of the Act, 1961 provides for requirement as to mode of acceptance, payment or repayment in certain cases to counteract evasion of tax. Section 269SS of the Act, 1961 was inserted by the Finance Act, 1984. 9. The provision of Section 269SS of the Act, 1961, which was inserted by the Finance Act, 1984 was as under: 269SS Mode of taking or accepting certain loans and deposits:- No person shall, after the 30the day of June, 1984, take or accept from any other person (hereafter in this section referred to as the depositor), any loan or deposit otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account if,- (a) the amount of such loan or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 taxpayer. The main object of Section 269-SS was to curb this menace. As regards the tax legislations, it is a policy matter, and it is for Parliament to decide in which manner the legislation should be made. Of course, it should stand the test of constitutional validity. 11. In the light of the facts of 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 Act, 1961. 12. Section 269SS of the Act, 1961 mandates no person, after the cut of date i.e. 30th day of June, 1984, shall take or accept from any other person any loan or deposit otherwise than by an account payee cheque or an account payee bank draft if the amount was more than ₹20,000/-. Breach of the provisions of Section 269SS of the Act, 1961 provides penalty to which a person would be subjected to under Section 271D of the Act, 1961. Section 271D does not provide that such transaction would be null and void. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 17. Under Section 139 of the Act, 1881, there is a presumption in favour of the holder. Section 139 of the Act, 1881, stipulates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. It is also well settled that at the time of the consideration of the case for summoning, the merit of the case cannot be tested. In the case at hand, the respondent-complainant has proved prima facie the basic ingredients of the offence under Section 138 of the Act, 1881. 18. Mr. Rakesh Thapliyal, learned Senior Counsel argued that the allegations in the complaint are totally false. 19. It is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. The Court would not also examine the genuineness of the allegations made in the complaint, since the Court does not function as a Court of Appeal or Revision while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. 20. In Pepsi Food Limited Vs. Special Judicial Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 23. As so far as the contentions of the applicant are concer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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