TMI Blog2015 (4) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... e Balance Sheet is signed by the Chartered Accountant and not by the appellant. It is true that in the matter of filing of Returns, the party takes the assistance of a Chartered Accountant/Expert. However, in the present case, the appellant could have examined the Chartered Accountant or atleast produced the accounts maintained, in order to establish that the amount of ₹ 75,000/- was advanced to the respondent No. 1. That evidence is not forthcoming. The appellant has not examined his wife, who is the Proprietor and in whose presence the amount is allegedly advanced. As noticed earlier from the evidence of the appellant, it does not appear that the appellant was having sufficient amount, so as to support the loan of ₹ 75,000/-, somewhere in June, 2008. The submission on behalf of the appellant that adverse inference needs to be drawn as the respondent No. 1 had failed to subject himself for cross examination, also cannot be accepted. It is now well settled that the accused can rebut the presumption on the basis of the cross examination of the complainant and other witnesses if any, and it is not necessary that he should enter the witness box as a rule. Appeal dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. However, subsequently, the respondent No. 1 chose to examine himself and his examination-in-chief was recorded on 29.10.2010 and the cross examination was deferred. The record shows that after granting time to the respondent No. 1 to subject himself for cross examination, as the respondent No. 1 failed to present himself, his evidence was closed on 01.12.2010. The learned Magistrate on hearing the parties was pleased to acquit the respondent No. 1 by judgment and order dated 29.01.2011. The learned Magistrate found that the appellant had produced his Income Tax Returns for the year 2009-2010 (Exhibit 42/C), and the same did not reflect the amount allegedly advanced to the respondent No. 1. The learned Magistrate also placed reliance on the decision of the Hon'ble Apex Court in the case of Krishna Janardhan Bhat Vs. Dattatraya Hegde, reported in (2008) 4 SCC 54 and decision in the case of Sandeep Shirodkar Vs. Shankar Dhawaskar and another, reported in 2010(1) Goa L.R. 498, in order to hold that the alleged advance of sum of ₹ 75,000/- in cash was in violation of Section 269-SS of the Income Tax Act and as such, would not constitute a legally enforceable debt/liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terfere in the judgment of acquittal. It is submitted that this is a case in which the learned Magistrate has neither considered the evidence which was material, namely the existence of advance of ₹ 75,000/-, as reflected in Profit and Loss Account and/or also failed to draw proper presumptions, which are statutory in nature, namely under Section 139 and 118 of the N.I. Act. It is submitted that the learned Magistrate has also failed to draw an adverse inference under Section 104 of the Indian Evidence Act when the respondent No. 1, after stepping into the witness box, failed to present himself for cross examination. Lastly, it is submitted that the view taken by the learned Magistrate in so far as the applicability of Section 269-SS of the Income Tax Act is concerned, is also misplaced. He therefore submitted that this is a fit case in which this Court ought to interfere with the judgment of acquittal. He therefore prayed that the appeal be allowed and the respondent No. 1 be convicted. 7. On the contrary, it is submitted by Shri Lobo, learned Counsel for the respondent No. 1 that the presumptions under Sections 139 and 118 of N.I. Act even if available, stand rebutted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of the Appellate Court while dealing with an appeal against acquittal is no longer res integra. The Hon'ble Supreme Court in the case of Vijay Pal Singh and others Vs. State of Uttarakhand, reported in 2014 (14) SCALE 142, has after taking survey of its earlier decisions including in the case of Basappa Vs. State of Karnataka, reported in (2014) 5 SCC 154 and Chandrappa and others Vs. State of Karnataka, 2007 4 SCC 415, has held that unless the judgment of acquittal is based on, no material or is perverse or the view taken by the Court is wholly unreasonable or is not a plausible view or there is non consideration of any evidence or there is palpable misreading of evidence, the Appellate Court will not be justified in interfering with the order of acquittal. In the case of Chandrappa (supra), the following general principles regarding power of the Appellate Court while dealing against the order of acquittal have been set out:- (1) An Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residence. Prior to that, on two to three occasions when the respondent No. 1 had approached, requesting for financial accommodation, the appellant had refused. However, ultimately looking at the financial crises as claimed by the appellant, he decided to give the money. The money was given on or about 20th or 22nd June, 2008. It was given in cash. He claimed that there are two other similar complaints filed by the wife against other persons, who had borrowed money from them. One of the cheque is for ₹ 89,000/- and the other for ₹ 58,800/-. He claimed that the respondent No. 1 had brought the cheques with details filled in. According to the appellant, the respondent No. 1 said that he could not write properly and he had got the details on the cheque filled by some other person. However, the cheque was signed in the presence of the appellant. He claimed ignorance as to any provision under Income Tax Act namely, amount exceeding ₹ 20,000/-, mandatorily being payable by cheque. He admitted that as on 31.03.2009 he had cash in hand of ₹ 9,951/- which jointly belonged to himself and his wife. He further admitted that on 31.03.2008, he was having cash in hand of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. It is true that in the matter of filing of Returns, the party takes the assistance of a Chartered Accountant/Expert. However, in the present case, the appellant could have examined the Chartered Accountant or atleast produced the accounts maintained, in order to establish that the amount of ₹ 75,000/- was advanced to the respondent No. 1. That evidence is not forthcoming. The appellant has not examined his wife, who is the Proprietor and in whose presence the amount is allegedly advanced. As noticed earlier from the evidence of the appellant, it does not appear that the appellant was having sufficient amount, so as to support the loan of ₹ 75,000/-, somewhere in June, 2008. 14. The learned Magistrate has then went upon considering the effect of Section 269- SS of the Income Tax Act, 1961, in order to hold that advance of ₹ 75,000/- was in violation of said provision. The learned Magistrate has placed reliance on the decisions of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat (supra) and Sandeep Shirodkar (supra). In the case of Krishna Janardhan Bhat (supra), the Hon'ble Supreme Court has found that the High Court had no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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