Friday, 1 January 2016

Whether amount not disclosed in income tax return can be recovered in prosecution under S 138 of NI Act?

 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
made in the case of “Sanjay Mishra ” (supra). No doubt, the above
judgment dated 19/07/2013, passed in Criminal Appeal No. 6 of 2013,
has been set aside by the Hon'ble Supreme Court, in Criminal Appeal
No. 614-615 of 2014. But the setting aside was because the appellant
(accused) had already paid the sum of ` 4,00,000/- in favour of the
complainant. The findings of the learned Single Judge in said Criminal
Appeal No. 6 of 2013 have not been set aside. I am in respectful
agreement with the observations made by the learned Single Judge
(R. C. Chavan, J) in Criminal Appeal No. 6 of 2012. I am of the view
that the provision of Section 138 of the N.I. Act does apply to the
present transaction.  
IN THE HIGH COURT OF BOMBAY AT GOA
 CRIMINAL REVISION APPLICATION NO. 53 OF 2014
Mr. Bipin Mathurdas Thakkar,

Versus
 Shri Samir alias Sameer Dessai,

 CORAM : U. V. BAKRE, J.

 Pronounced on : 5th February, 2015.
Citation; 2015 ALLMR (CRI)4172

 Heard Mr. Shirodkar, learned Counsel for the petitioner and Mr.
Bhobe, learned 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/- to the complainant which the accused had taken for
business purpose. The accused, in this regard, had executed a
demand promissory note dated 01.11.2011 before Notary Public
namely Advocate Shri Sachin S. Kolwalkar at Margao. As per the said
demand promissory note, the accused was supposed to repay to the
complainant the said amount of ` 25,00,000/- within a month.
Towards repayment of the said amount the accused had issued a
cheque bearing no. 701475 dated 05.12.2011 for the said amount of `
25,00,000/-, drawn on the Syndicate Bank, Margao branch, Margao,
Goa, in favour of the complainant. The complainant presented the
said cheque for encashment with his bankers that is Syndicate Bank,
Canacona branch, Nagorcem, Canacona. However, by letter dated
12.12.2011, the bank informed the complainant that the said cheque
has been dishonoured with endorsement “opening balance
insufficient”. The complainant by legal notice dated 23.12.2011
addressed by registered post to the accused demanded the said
cheque amount within 15 days from the receipt of of notice. The said
notice was returned back with endorsement “unclaimed return to
sender”. Hence, the complaint.
5. After the substance of accusation was explained to the accused
to which he pleaded not guilty and claimed to be tried, the
complainant examined himself as PW1 and produced the relevant
documents. The statement of the accused under Section 313 of
Criminal Procedure Code was recorded. The accused examined Reese
Mathews, Senior bank manager of Canara Bank, Canacona Branch as
DW1, Shri U. B. Surendranath, Senior Manager of Syndicate Bank, 
Margao as DW2 and himself as DW3.
6. Case of the accused was that the complainant had paid to him
an amount of ` 15,00,000/- through bank transaction, in the month of
April 2010, for trading in iron ore. It was further the case of the
accused that there was oral commitment between him and the
complainant that he would pay share of profit in respect of the said
trade. It was the case of the accused that within an year of receiving
the said amount, he repaid to the complainant an amount of `
25,00,000/-: ` 15,00,000/- being principal amount and ` 10,00,000/-
being the share in the profit. According to the accused he did not
enter into any other transaction with the complainant. It is his case
that the demand promissory note and the cheque dated 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.  5 CrRev 53/14
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/-
from the complainant and had agreed to pay ` 25,00,000/- namely `
15,00,000/- towards principal amount and ` 10,00,000/- being the
share in profit. He submitted that the said amount of ` 25,00,000/-
was paid to the complainant in installments, the last being paid on
10/08/2011. He invited my attention to the cross-examination of PW1
where the payment of the said amount has been admitted. He also
read out the evidence of DW1 and DW2. Learned Counsel submitted
that there is no evidence on record to establish the capacity of the
complainant to advance such an huge amount of ` 25,00,000/- to the
accused. He urged that the demand promissory note and the cheque
which were subject matter of the criminal case were taken forcibly
from the accused. He submitted that insofar as the said amount of `
25,00,000/-, is concerned, there is no mention of any earlier
transaction either in the complaint or in the legal notice. He pointed
out that no income tax returns have been filed in which the said 6 CrRev 53/14
amount was mentioned. He submitted that even if the said amount
was paid by the complainant to the accused, the said amount was
unaccounted cash and that the provision of Section 138 of N.I. Act is
not applicable to such amount. Learned Counsel submitted that the
accused need not disprove the existence of consideration by way of
direct evidence and the onus on the accused in not as heavy as that of
the prosecution. He therefore urged that the petitioner was entitled to
acquittal since he had rebutted the presumption arising out of section
139 of N.I. Act. Learned Counsel relied upon the following judgments:
(i) “Sanjay Mishra v/s. Kanishka Kapoor” reported in
2009 All M.R. (Cri) 1080
(ii) “Ramdas Hanumant Palankar vs. N.D. Vernekar and
another” reported in [2008(2) Bom.C.R. (Cri.) 401],
(iii) “K. S. Panduranga Vs. State of Karnataka” reported
in [(2013) 3 SCC 721]
(iv) Order dated 28/06/201323 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),
(v) “M. S. Narayan Menon alias Mani Vs. State of Kerala
& Anr”, reported in [(2006) 6 SCC 39]
(vi) “Vinay Parulekar Vs. Shri Pramod Meshram”,
reported in [2008 (3) AIR Bom R 721]  7 CrRev 53/14
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 Criminal Appeal No. 6 of 2012 in the Case of
“Mr. Krishna P. Morajkar v/s. Mr. Joe Ferrao and another”. He further
submitted that the present is a revision application and no perversity
or jurisdictional error has been shown with regard to the impugned
judgment and order. He therefore submitted that the revision
application deserves to be dismissed.
11. I have gone through the material on record and I have also 
considered the arguments advanced by the learned Counsel for the
parties as also the judgments relied upon by them.
12. There is no dispute that cheque dated 05/12/2011 has been
signed by the accused. As has been held by the Apex Court in the
case of “Rangappa Vs. Sri Mohan”, reported in [(2010) 11 SCC 441],
there is an initial presumption which favours the complainant, which of
course is in the nature of rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of a legally
enforceable debt or liability can be contested. In the present case, in
addition to the cheque, there is demand promissory note admittedly
executed by the accused. There is no dispute that the said cheque
was presented for encashment during its validity period and that the
same was returned back unpaid with endorsement “Opening balance
insufficient”. According to the complainant, he thereafter issued legal
notice dated 23/12/2011 by registered post A.D. to the accused
demanding the said amount of ` 25,00,000/- within 15 days from the
receipt of the notice and further intimating that failure to do so will
result in filing of criminal proceedings under Section 138 of the N.I.
Act. According to the complainant, the said notice was returned by
the postal authorities with endorsement “unclaimed return to the
sender”. PW1 has produced on record copy of the said legal notice
alongwith postal slip to prove that the same was duly posted. PW1 has
also produced the unclaimed envelop containing the legal notice 
alongwith A.D. Card. However, according to the accused he did not
receive the said notice. PW1 in his cross-examination has admitted
that nowhere on the envelop at Exhibit – 23 colly., it is written that the
said envelop containing notice was unclaimed and to be returned to
the sender. PW1 stated that he was informed by his advocate that
the said envelope was returned back since it was unclaimed. Even if
it 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 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 should be deemed that the accused was duly served and 10 CrRev 53/14
intimated about the legal notice under Section 138 of the N.I. Act. The
accused ought to have claimed the said notice and ought to have
given an appropriate reply denying his liability which he has not done.
Adverse inference is bound to be drawn against the accused. There is
no dispute that within the prescribed time, the complainant filed the
complaint before the learned High Court.
13. There is an admission by PW1 (complainant), in his crossexamination,
that he had received from the accused a sum of `
5,00,000/- on 24/05/2010; ` 5,00,000/- on 13/12/2010; ` 3,00,000/- on
05/04/2011; ` 2,00,000/- on 16/04/2011; ` 3,00,000/- on 25/04/2011; `
2,00,000/- on 28/04/2011; ` 3,00,000/- on 28/07/2011 and ` 2,00,000/-
on 10/08/2011. The evidence of DW1 and DW2 also establishes the
said payment. The complainant thus received an amount of `
25,00,000/- during the period from May, 2010 to August, 2011.
However, the said payment cannot have any connection with the
cheque which is the subject matter of the present case. The accused
had executed demand promissory note on 01/11/2011 which is
admittedly signed by him wherein he promised to pay to the
complainant a sum of ` 25,00,000/- alongwith 12% interest per
annum within one month from 01/11/2011. This demand promissory
note had been executed before the notary, Advocate Shri Sachin S.
Kolwalkar. Thereafter, on 05/12/2011, the accused issued the cheque
bearing no. 701475 for ` 25,00,000/- which is the subject matter of the 11 CrRev 53/14
present case. Thus, the payment of ` 25,00,000/- made from May,
2010 till August 2011 has nothing to do with the subsequently issued
cheque dated 05/11/2011, as has been stated by PW1. Since the said
earlier transaction was complete, there was no need to make a
mention of it in the complaint. The case of the accused, that the
complainant pressurized him to sign the said promissory note by
coming to his house along with some people and asked him to come
to the notary's office to execute the said demand promissory note
and to bring with him a cheque and that he signed the said promissory
note and the disputed cheque, under pressure, is not acceptable at all
since there is absolutely no reason for the accused to come under
pressure to execute the said promissory note and the cheque. 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 12 CrRev 53/14
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 complainant and that he had already repaid the
said principal amount of ` 15,00,000/- along with ` 10,00,000/-
towards share in profit ( total ` 25,00,000/- ) by 10/08/2011 and that
there was no other transaction with the complainant, however, it is
pertinent to note that in his cross-examination, DW3, the accused, has
specifically stated that during signing of the promissory note he was
supposed to pay to the complainant some amount and with that
respect he had signed the promissory note. The above is the
voluntary statement of the accused which means that even after
10/08/2011, the accused was supposed to pay some amount to the
complainant. That explains the amount of ` 25,00,000/- as promised
to be paid by way of the said demand promissory note dated
01/11/2011 and the cheque dated 05/12/2015. The accused has
miserably failed to rebut the presumption arising in favour of the
complainant under section 139 of the N. I. Act.

15. In the case of “Sanjay Mishra” (supra), the learned Single Judge 13 CrRev 53/14
of this Court has held that the provision of Section 138 of N.I. Act
cannot be resorted to for recovery of an unaccounted amount. It has
been held that 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 N.I. Act. The learned
Single Judge in paragraph 7 of the judgment in the case supra has
held thus :
“7. It is true that merely because 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 said Act stands rebutted. There
may be cases where a small amount less than a sum of
Rs.20,000/- is advanced in cash by way of loan which
may be repayable within few days or within few months.
A complainant may not show the said amount in the
Income Tax Return as it is repayable within few days or
few months in the same financial year. In such a case
the failure to show the amount in the Income Tax Return
may not by itself amount to rebuttal of presumption
under section 139 of the said Act. If in a given case the
amount advanced by the complainant to the accused is
a large amount and is not repayable within few months,
the failure to disclose the amount in Income-Tax return
or Books of Accounts 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  14 CrRev 53/14
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 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 ”Krishna janardhan Bhat”
(supra), decided by two judge Bench of the Supreme Court, it was
further held that advance of more than ` 20,000/- was to be made
only by way of an account payee cheque. However, in the case of
“Rangappa” (supra), decided by the three judge Bench of the Apex
Court, an advance of ` 45,000/- was made in cash in spite of which the
Hon'ble Supreme Court proceeded to uphold the conviction. Thus, the
judgment in the case of ”Krishna janardhan Bhat” (supra), with regard
to the advance of cash amount of more than ` 20,000/- without 15 CrRev 53/14
showing the same in income tax returns, has been impliedly overruled.
Therefore, it cannot be said that merely because the amount
advanced was not shown in the income tax returns, Section 138 of N.I.
Act is not applicable.
18. Vide judgment dated 19/07/2013 passed In Criminal Appeal No.
6 of 2012 (Mr. Krishna P. Morajkar V/s Mr. Joe Ferrao and another),
learned Single Judge of this Court has dealt with, in detail, the
judgment in the case of “Sanjay Mishra” (supra). The learned Single
Judge has observed thus:
“22. As already observed, since Krishna Janardhan Bhat
(supra) does not lay down any proposition of law,
judgments which follow Krishna Janardhan Bhat (supra)
would have to be ignored. This leaves question of
advance not being reflected in books of account. The
learned Counsel for the respondent relied on judgment
in Sanjay Mishra V/s. Kanishka Kapoor @ Nikki & anr.
reported at 2009 (3) Bom.C.R. (Cri.) 157 = 2009 (4)
Mah.L.J. 155 where the question of unaccounted
money is considered. In this judgment too, a learned
Single Judge of this Court copiously quoted from the
judgment of Supreme court in Krishna Janardhan
Bhat (supra) in paragraphs 9, 10 & 11. It need not be
restated that since Krishna Janardhan Bhat (supra) was
expressly overruled on the nature of presumption
under Section 139 and impliedly on the question of
cash advances, it remains a decision on facts of that
case and so the observations in Sanjay Mishra  16 CrRev 53/14
(supra) based on Krishna Janardhan Bhat (supra) may
be safely excluded from consideration.
23. In Sanjay Mishra (supra) the Court had also noted in
para 14 the observations of the Supreme Court in
Dalmia Cement (Bharat) Ltd Vs. Galaxy Traders &
Agencies Ltd & Ors. reported at (2001) 6 Supreme Court
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 crossexamination,
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 17 CrRev 53/14
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
had advanced loan on 14th September 2004 which
was repayable within 90 days. Thus, on
14th September 2004 the amount allegedly paid
by him to the 1st respondent was stated to
be an unaccounted amount which was kept
at the residence of the applicant. Moreover, till
February 2006, when the evidence was recorded,
the said amount was not disclosed in the
Income Tax Returns of the applicant. Thus it
continued to be an unaccounted amount.
7. It is true that merely because 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 said Act
stands rebutted. There may be cases where a small
amount less than a sum of Rs.20,000/- is advanced
in cash by way of loan which may be repayable
 within few days or within few months. A
complainant may not show the said amount in the
Income Tax Return as it is repayable within few
days or few months in the same financial year. In
such a case the failure to show the amount in the
Income Tax Return may not by itself amount to
rebuttal of presumption under section 139 of the
said Act. If in a given case the amount advanced by
the complainant to the accused is a large
amount and is not repayable within few months,
the failure to disclose the amount in Income-Tax 18 CrRev 53/14
return or Books of Accounts of the complainant
may be sufficient to rebut the presumption under
section 139 of the said Act.
8. In the present case, the amount was
allegedly advanced in September 2004. The
amount is a large amount of Rs.15 lacs. This is a
case where not only that there is a failure to
disclose the amount of loan in the Income Tax
Return of the applicant till the year 2006 but there
is a categorical admission on the part of
the applicant that the amount was an
"unaccounted" amount.” (emphasis supplied).'
24. It may be seen that even in Sanjay Mishra (supra)
failure to show the advances in income tax returns is
not held to be always fatal. While observing that
small amounts of less than Rs.20,000/- could be
so advanced, the Court was obviously influenced
by observations in Krishna Janardhan Bhat (supra)
and provisions of Sections 269SS and 271D of Income
Tax Act, which as already pointed out, require a
borrower to receive amount in excess of Rs.20,000/-
only by cheques. In the case at hand, the amount was
advanced in the last week of March, 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 Rs.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
made in the case of “Sanjay Mishra ” (supra). No doubt, the above
judgment dated 19/07/2013, passed in Criminal Appeal No. 6 of 2013,
has been set aside by the Hon'ble Supreme Court, in Criminal Appeal
No. 614-615 of 2014. But the setting aside was because the appellant
(accused) had already paid the sum of ` 4,00,000/- in favour of the
complainant. The findings of the learned Single Judge in said Criminal
Appeal No. 6 of 2013 have not been set aside. I am in respectful
agreement with the observations made by the learned Single Judge
(R. C. Chavan, J) in Criminal Appeal No. 6 of 2012. I am of the view
that the provision of Section 138 of the N.I. Act does apply to the
present transaction.  
20. In the case of “Ramdas Hanumant Palankar” (supra), it was found
that the complainant did not have the capacity to advance loan of `
2,00,000/- in cash at the relevant time. No returns of income tax,
sales tax book of accounts were produced to show that he had
capacity to advance the amount of ` 2,00,000/- in cash. On account
of the above, it was held that the accused had discharged the burden
of rebutting the presumption. In the present case, there is an
admission that the complainant had paid to the accused an amount of
` 15,00,000/- sometime in April, 2010. The evidence on record
proves that the payment of said amount was an earlier transaction.
However, that shows that the complainant had capacity to pay huge
amounts to the accused. Besides the above, there is evidence by way
of demand promissory note.
21. In the cases of “M. S. Narayan Menon alias Mani “ and “Vinay
Parulekar” (supra), the Apex Court has explained as to how the
presumptions under the Evidence Act as also under the N.I. Act could
be rebutted and the concept of standard of proof, in cases under
Section 138 of the N.I.Act. There can be no dispute about the
propositions laid down in the above cases and I have duly considered
the same.
22. In view of the above, no perversity or jurisdictional error has
been shown with regard to the impugned judgment and order. The 
Judgment dated 21/02/2014 in Criminal Case No. 4/OA/NI/2012 and
the Judgment and order dated 29/02/2014 in Criminal Appeal No. 41 of
2014 are in accordance with law and there is no scope for
interference with the same. There is no merit in the present revision
application which deserves to be dismissed.
23. In the result, the Revision Application is dismissed. Rule stands
discharged. The accused shall surrender before the learned J.M.F.C., to
undergo sentence imposed upon him, within a period of six weeks
from today.
 U. V. Bakre,J.
MV
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