TMI Blog2015 (2) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel for the respondent no. 1. Parties submitted that copies of relevant documents are on record. Hence records and proceedings from the lower Courts are not called for. 2. Rule. Rule made returnable forthwith. By consent, heard forthwith. 3. This revision application has been filed against the judgment and order dated 20/09/2014 passed by the learned Additional Sessions Judge, South Goa, Margao ('Appellate Court', for short) in Criminal Appeal No. 41 of 2014 and judgment and order dated 21/02/2014 passed by the learned Judicial Magistrate, First Class at Canacona ('J.M.F.C', for short) in Criminal Case No. 4/OA/NI/2012. The petitioner was the accused in the said criminal case whereas the respondent no. 1 was the complainant. Parties shall hereinafter be referred to as per their status in the said criminal case. 4. The complainant had filed the complaint against the accused under Section 138 of the Negotiable Instruments Act, 1881('N.I. Act', for short). The case of the complainant was as follows: The complainant and the accused were known to each other as they were businessmen by profession. The accused owed an amount of ₹ 25,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 05/12/2011 were forcibly taken by the complainant from him. 7. Upon consideration of the entire evidence on record, the learned J.M.F.C. held that the complainant proved that the accused had issued the said cheque towards the discharge of legally enforceable debt. The J.M.F.C. held that the complainant proved his case beyond reasonable doubt. The accused was held guilty and was convicted of the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment for three months and to pay compensation of ₹ 30,00,000/- to the complainant, in default to undergo simple imprisonment for a period of six months. 8. Aggrieved by the judgment and order of the learned J.M.F.C., the accused filed Criminal Appeal No. 41 of 2014 before the Sessions Court at South Goa Margao. Vide the impugned judgment and order dated 20/09/2014, the Appellate Court dismissed the said appeal and maintained the judgment and order passed by the learned J.M.F.C.. The accused therefore has filed the present revision application. 9. Mr. Shirodkar, learned Counsel for the accused, submitted that in the year 2010 the complainant had borrowed only ₹ 15,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vinay Parulekar Vs. Shri Pramod Meshram , reported in [MANU/MH/1269/2007MANU/MH/1269/2007 : 2008 (3) AIR Bom R 721] 10. On the other hand, Mr. Bhobe, learned Counsel for the complainant submitted that there were two transactions both in the year 2010. He submitted that since the first transaction was completed and payments were made, no mention of the same was made in the complaint or in the legal notice. He submitted that the admission of PW1 regarding the payment in installments of the said sum of ₹ 25,00,000/- was regarding the said first transaction. He pointed out that the last installment of the said first transaction was paid in August, 2011 whereas the demand promissory note was executed on 01/11/2011 and the cheque was issued on 05/12/2011 which cannot have any connection with the amounts earlier paid. He submitted that the defence of the accused that the demand promissory note and cheque were forcibly taken has no force at all. He pointed out that the notary public namely Advocate Shri Sachin S. Kolwalkar had not been examined. Insofar as the contention regarding unaccounted cash, is concerned, the learned Counsel relied upon the judgment of this Court in Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is taken for granted that there is not endorsement made by the postal authorities on the envelope as unclaimed, return to the sender , then also, that is not sufficient to hold that the compliance of the provision of sending of notice was not done by the complainant. In the case of M/s. Armstrong Builders and Developers V/s. Mr. Vishvanath Naik , reported in MANU/MH/1059/2006MANU/MH/1059/2006 : 2007(1) All MR 167, it has been held that when the sender has dispatched the notice by post with the correct address written on it then it can be deemed to have been served on the sender unless he proves that it was not really served and that he was not responsible for non-service. In his deposition the accused stated that he was in Cochin for one month as his father had expired on 13/12/2010 and that he returned back on 15/01/2011. But. the legal notice is dated 23/12/2011 which is after the accused returned back. Therefore the alleged absence of the accused had nothing to do with the receipt or non-receipt of the legal notice. The evidence on record reveals that the accused was intimated on 26/12/2011 and 04/01/2012. Therefore, as has been rightly held by the learned J.M.F.C., it shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. It is not the case of the accused that the complainant had threatened to kill him or his beloved family member/s or in any other manner had forcefully obtained the signature. According to the accused, he did not lodge any police complaint against the complainant or other persons who had forced him to sign the demand promissory note and who came to the notary public, by coming to his residence. Though according to the accused, he had told the notary Advocate Sachin S. Kolwalkar that he has been pressurized by the complainant to sign the promissory note and that inspite of the same, Advocate Sachin S. Kolwalkar drafted the promissory note and that he had refused to sign the promissory note twice, he has not examined the said notary Advocate Sachin S. Kolwalkar to establish the said facts. There is no reason for a notary public to take signature of the accused when he has been pressurized by other persons to do so. Therefore, as has been rightly held by the learned J.M.F.C., it is not at all proved that the demand promissory note and cheque were taken forcibly from the accused. 14. Though it is the case of the accused that he had borrowed ₹ 15,00,000/- from the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the complainant may be sufficient to rebut the presumption under section 139 of the said Act. 16. In Criminal Misc. Application no. 233 of 2011 (Ravindra Vassant Kenkre (since deceased) through LR's (I) Smt. Sharmila Ravindra Kenkre and another v/s. Mrs. Nutan Damodar Prabhu and another), this Court relied upon the judgment in the case of Sanjay Mishra (supra) and held that since the amount was not shown in the income tax returns, it cannot be said that there was legally enforceable debt or liability. 17. The observations in the case of Sanjay Mishra (supra), with regard to unaccounted cash, are based on the judgment of the Hon'ble Supreme Court in the case of Krishna janardhan Bhat Vs. Dattatraya G. Hegde reported in MANU/SC/0503/2008MANU/SC/0503/2008 : 2008 (4) SCC 54. In the case of Krishna janardhan Bhat (supra), it was held that the existence of legally enforceable debt was not a matter of presumption under Section 139 of the N.I. Act. However, the above observation in the Judgment in the case of Krishna janardhan Bhat (supra) has been overruled by a three judge Bench of the Supreme Court in the case of Rangappa (supra). In the said case of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt Cases 463 and, ultimately, refused leave for filing an appeal against acquittal, possibly principally on account of the following facts noted by the Court in paras 6,7 8 of the judgment. '6. I have given careful consideration to the submissions. I have perused a copy of the complaint and notes of evidence. In the cross-examination, the applicant has categorically stated thus: .... The entire amount was given in cash. The entire amount was my cash amount. The cash amount was kept at my Chembur's residence. At that time, it was unaccounted. I had not disclosed this amount to the Income Tax after giving the loan till date. There was no agreement for interest on the amount given...... (Emphasis added) The complaint was filed in the year 2005. The evidence of the applicant was recorded on 28th February 2006. The applicant admitted that the amount allegedly paid by him to the 1st respondent by way of loan was a cash amount kept at his residence and at that time it was an unaccounted amount. He categorically admitted that till date (i.e. till 28th February 2006) he has not disclosed the amount to the Income Tax. According to the case of the complainant, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 2006 and was to be repaid by 30/09/2006 i.e. within 6 months. Thus, even observations in Sanjay Mishra (supra) (minus the ceiling of ₹ 20,000/- which has no legal sanctity), would not make the appellant's case untenable. 19. The learned Single Judge in Criminal Appeal No. 6 of 2012 has observed that there is no provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. It has been observed that if some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. It is further observed that infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. It has been held that to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the N.I. Act. The learned Single Judge has respectfully disagreed with the observations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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