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TMI Blog2015 (4) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 issued two cheques dated 07.07.2008 in the sum of Rs. 35,000/- and Rs. 40,000/- towards repayment of the amount. The cheques were drawn on the account of the respondent No. 1 with Syndicate Bank, Kavlem Branch. When the appellant presented the cheques in his account for encashment with Ratnakar Bank Limited, Ponda Branch, the cheques were returned unpaid for want of sufficient funds. The appellant accordingly issued a notice dated 30.10.2008 calling upon the respondent No. 1 to pay the amount of Rs. 75,000/- within 15 days. The respondent No. 1 failed to pay the amount inspite of service of the notice on 04.11.2008. In such circumstances, the appellant filed the complaint as stated earlier. 3 . The appellant examined himself and produced certain documents including the subject cheques at Exhibit 24-C. The respondent No. 1 did not dispute that the cheques were signed by him. However, it was brought on record in the cross examination that the ink in which the details of the cheques are filled, is different from the ink used for signing the cheques. It appears that when the statement of the respondent No. 1 was recorded under Section 313 of the Code of Criminal Procedure, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however failed to present himself for cross examination. This ought to have prompted the learned Magistrate to draw adverse inference against the appellant, which has not been done. The learned Counsel for the appellant has also taken me through the observations in paragraph 24 of the judgment, in order to submit that the same is contrary to the evidence on record. It is submitted that in fact the Assets and Liability Statement annexed to the Income Tax Returns (Exhibit-42/C) reflects the amount of Rs. 75,000/- advanced to the respondent No. 1. Thus the finding that the sum is not reflected in the Income Tax Returns is clearly against, positive evidence in this regard. 6 . It is next submitted that the reliance placed by the learned Magistrate on the decisions of Krishna Janardhan Bhat and Sandeep Shirodkar (supra) is also misplaced, particularly in view of the subsequent decision of the Hon'ble Apex Court in the case of Rangappa Vs. Sri Mohan, reported in 2010 (11) SCC 441 and K. Subramani Vs. K. Damodara Naidu, reported in (2015) 1 SCC 99. The learned Counsel also placed reliance on the judgment of the Hon'ble Apex Court in the case of Vijay Vs. Laxman and another, repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in ignoring the same. The learned Counsel has lastly submitted that the reliance placed by the learned Magistrate on Section 269-SS of Income Tax Act is quite justified and thus the finding recorded by the learned Magistrate that in the absence of the amount being reflected in the Income Tax Returns, the necessary ingredient of the cheques being issued towards a legally enforceable debt or liability is not proved, is perfectly legal and proper. The learned Counsel placed reliance on the decision of this Court in Sanjay Mishra Vs. Kanishka Kapoor alias Nikki, reported in BCR(CRI)-2009-3-157, Peter Mascarenhas Vs. Monsabre Ashley Oswald Dias and others, reported in MHLJ-2010-5-117 and Sandeep Shirodkar Vs. Shankar Dhawaskar, reported in BCR(CRI)-2010-2-867, in support of his various submissions. The learned Counsel has lastly submitted that the scope and ambit of the jurisdiction available in an appeal against acquittal is essentially limited and this Court in the absence of any perversity in the finding as recorded by the learned Magistrate would not be justified in interfering with the same. He therefore urged that the appeal be dismissed. 8 . I have considered the rival circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trengthened by the Trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court." Thus, it would be clear that only because two views are possible, the Appellate Court would not be justified in substituting its view on the ground that it is more plausible. 9. Turning to the present case, it has come in the evidence of the appellant that he was knowing respondent No. 1 since 10 years prior to the date on which amount of Rs. 75,000/- was allegedly advanced. The appellant has claimed that his father was having Tempos and respondent No. 1 was doing fabrication work and as the appellant was sending the vehicles to the garage of the respondent No. 1 between Vadacadem and Usgao, since the year 1999 they were known to each other. From the year 2000, the vehicle were not sent. Further according to the appellant, he is a wholesale dealer in stationery. The business is in the name of his wife, which is looked after by him. The amount was given to the accused some 15 days prior to the date of the cheque and no receipt was obtained. The money was given to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,000/- on the date on which it is said to be advanced. In paragraph 22 of the judgment, the learned Magistrate has then considered the fact that the appellant did not obtain any receipt and has found that no prudent man would advance a huge sum of money without executing any document and without charging any interest. 12. The learned Counsel for the appellant has taken serious objection to the observation and finding with regards to the Income Tax Returns in paragraphs 25 and 26. It is submitted that the observation by the learned Magistrate that advance of Rs. 75,000/- is not reflected in the Income Tax Returns for the Assessment Year 2009-10 at Exhibit-42/C is apparently incorrect. The learned Counsel has invited my attention to the document at Exhibit-42/C, in order to submit that Balance Sheet as on 31.03.2009, shows an advance of Rs. 75,000/- to the respondent No. 1, under the Head of Current Assets. 13. I have considered the rival circumstances and the submissions made. The Income Tax Return is in respect of M/S Kamala Traders of which the Proprietor is shown as Smt. Radhika R. Pangam and the appellant. The Balance Sheet is signed by the Chartered Accountant and not by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishna Janardhan Bhat (supra) are not affected by the later decision in the case of Rangappa (supra). 15. 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. 16. In K. Subramani (supra), the High Court had decided a batch of ten appeals remanding the complaints under Section 138 of the Negotiable Instruments Act to the learned Magistrate. In one of the appeals, the complainant and the accused were working as Lecturers in Government College. It was found that the complainant had come with the case that he had advanced an amount of Rs. 14,00,000/- to the accused. Both of them were governed by Government Servants' Conduct Rules which prescribed the mode of lending and borrowing. There was nothing on record to show that the prescribed mode was followed. It was also found that the complainant could not establish the source of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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