TMI Blog2015 (7) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly, when on his own saying, he continued to advance the amount, although the amounts paid earlier, were not repaid. One of the material circumstances to be established in a prosecution of the present nature is that the cheque should have been shown to be issued in discharge of a legally enforceable debt or liability. The existence of such a promissory note by the first respondent was a material circumstance and would have found place in the notice as well as the complaint. However, that is lacking. It is trite that presumption under Sections 118 and 139 of the Act can arise only where the signature is admitted. In the present case, it appears from the cross-examination of PW1 that the first respondent had disputed her signature on the cheque. It cannot be gainsaid that the first respondent had not made any attempt to get the documents examined. The fact remains that the appellant had himself made an application for sending the document to the forensic laboratory - the observations herein pertain to the complaint under Section 138 of the Act, and the issues which arise thereunder. If the appellant has taken recourse to any other legal remedy for recovery of the amount, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the promissory note exhibit 40. The material defence of the first respondent was that the cheque does not bear her signature. 4. The learned Magistrate came to the conclusion that the appellant has failed to prove that the cheque was issued in discharge of a legally enforceable debt or liability and in that view of the matter, proceeded to acquit the first respondent. Feeling aggrieved, the complainant is before this Court. 5. I have heard Shri Padgaonkar, the learned Counsel for the appellant and Shri Menezes, the learned Counsel for the first respondent. 6. It is submitted by the learned Counsel for the appellant that the appellant was working as Assistant Teacher in the school, where the husband of the first respondent was Headmaster and as such, they were acquainted with each other. It is submitted that on account of this acquaintance and looking to the emergent need of the first respondent, he had advanced various amounts for the period from June 2006 to December, 2007 to the first respondent. It is submitted that when the first respondent failed to return the amount, the appellant sought intervention of her husband Mr. Avdhuth Kakodkar, whereupon the first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in breach of Section 269SS of the Income Tax Act and this itself would be sufficient to discard the evidence of the complainant. It is submitted that appellant had filed an application exhibit D74 before the learned Magistrate, in pursuance of which, the cheque was also referred to Central Forensic Laboratory at Hyderabad. However, it was returned with a request, to resubmit the same with a genuine admitted signature. It is submitted that thereafter, the matter was not pursued. It is submitted that the view taken by the learned Magistrate cannot be said to be perverse, requiring interference. 9. On hearing the learned Counsel for the parties and on perusal of the record and the impugned judgment, I do not find that any case for interference is made out. The scope and ambit of the powers available to this Court in an appeal against acquittal are no longer res integra. In a decision in the case of Chandrappa Vs. State of Karnataka, (2007)4 SCC 415, the Hon'ble Apex Court has held thus in paragraph 42 of the judgment: 42.From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent on a specious ground that the first respondent was known to the appellant, as she was the husband of the headmaster of the school, where the appellant was earlier serving. It has come in the evidence of PW1 that there was no business transaction as such between the appellant and the first respondent and for the matter of that, between the appellant and Avdhuth Kakodkar, the husband of the first respondent. It is not even the case that Avdhuth Kakodkar had at any time approached the appellant with a request for financial accommodation. According to the appellant, it is only when the first respondent defaulted in the matter of repayment of the amount that he sought intervention of Avdhuth Kakodkar, when the subject cheque and another cheque for ₹ 4 Lakhs were passed by the first respondent. If we see the details of the amounts, which are allegedly advanced, they are ranging from ₹ 30,000/-to ₹ 80,000/-and extend over a fairly long period. PW1 has admitted that the first respondent was a housewife. It is difficult to understand as to what would be the emergent need , of a housewife that too without the intervention of the husband, she approached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments examined. The fact remains that the appellant had himself made an application for sending the document to the forensic laboratory. However, that exercise was not taken to its logical end. It is trite that even where the presumption under Sections 118/ 139 of the Act is available, the same can be rebutted on the basis of the cross-examination of the witnesses of the complainant and other material evidence on record. Thus, it is not mandatory for the accused to enter into the witness box for the purpose of rebuttal of the said presumption. There is one more circumstance in this case which turns upon the applicability of Section 269SS of the Income Tax Act. In the case of Krishna Janardan Bhat Vs. Dattatraya G. Hegde, reported in (2008)4 SCC 54, the Hon'ble Supreme Court has inter alia held that in terms of Section 269SS of the Income Tax Act, any advance by way of loan for more than ₹ 20,000/-has to be made by an Account Payee cheque only. The fact that all the transactions are said to be in cash, which are not evidenced in any income tax returns, would be sufficient to hold that the appellant had failed to establish that the cheque was issued in discharge of any leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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