TMI Blog2022 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the revision petitioner/accused, on 26.08.1999, for ₹ 1,10,000/-, whereas the cheque under Ex.P1 was issued for ₹ 1,81,400/- on 05.07.2002. However, the 2nd respondent/complainant has not properly explained under what circumstances, the cheque was issued for ₹ 1,81,400/-. That apart, the 2nd respondent/complainant (P.W.1) has admitted in his cross-examination that he has withdrawn ₹ 30,000/- by depositing the cheque of the revision petitioner/accused on 01.12.2000, which clearly proves the contention of the revision petitioner/accused that the 2nd respondent/complainant had misused the cheques issued by him for obtaining a bank loan. The finding recorded by the learned trial Judge that the 2nd respondent/complainant had established that the cheque was issued towards discharge of legally enforceable debt, which was confirmed by the appellate Court, is suffered from illegality and caused miscarriage of justice. Hence, the conviction and sentence imposed against the revision petitioner/ accused for the offence punishable under Section 138 of the N.I. Act is liable to be set aside - Criminal revision case allowed. - CRL.R.C.No.1288 of 2007 - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 2,00,000/- to the 2nd respondent/complainant, within a period of one month from the date of judgment. Aggrieved by the same, the revision petitioner/accused preferred Crl.A.No.25 of 2006 before the Additional Metropolitan Sessions Judge, Cyberabad, Hyderabad. Vide judgment, dated 13.09.2007, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial Court against the revision petitioner/accused. Heard the learned Counsel appearing on either side and perused the record. Learned Counsel for the revision petitioner/accused would submit that though the 2nd respondent/complainant (P.W.1) admitted in his cross-examination that he was an income tax assessee, he has not shown the alleged transaction amount in his Income Tax Returns during that period and the said aspect has not been considered by both the Courts below; that P.W.1 further admitted in his cross-examination that he has not issued any notice to the revision petitioner/accused demanding repayment of loan; that P.W.1 also admitted that he has withdrawn ₹ 30,000/- by depositing the cheque of the revision petitioner/accused on 01.12.2000, which establishes that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments Act. The case of the revision petitioner/accused is that the 2nd respondent/complainant had taken one signed blank cheque, two unsigned blank cheques and promissory note from him with a promise to arrange a loan for him and thereafter, the 2nd respondent/complainant had misused the cheques. In Dalmia Cement (Bharat) Ltd Vs. Galaxy Traders Agencies Ltd Ors. (2001) 6 SCC 463 the Apex court has referred to the object of Section 138 of the N.I. Act. Paragraph 3 of the said decision reads thus: 3. The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instruments is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible one into money and easily passable from person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day world, are likely to be adversely affected as it is imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act clearly provides that a debt or other liability referred to in section means a legally enforceable debt or other liability. The alleged liability to repay an unaccounted cash amount admittedly not disclosed in the Income Tax Return cannot be a legally recoverable liability. If such liability is held to be a legally recoverable debt, it will render the explanation to Section 138 of the said Act nugatory. It will defeat the very object of Section 138 of the Act of ensuring that the commercial and mercantile activities are conducted in a healthy manner. The provision of Section 138 cannot be resorted to for recovery of an unaccounted amount. A cheque issued in discharge of alleged liability of repaying unaccounted cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of Section 138 of the said Act. Such an effort to misuse the provision of Section 138 of the said Act has to be discouraged It is true that merely because the amount advanced is not shown in Income Tax Return, in every case, one cannot jump to the conclusion that the presumption under Section 139 of the N.I. Act stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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