The legal enforceability of debt or liability under the NI Act is influenced by the provisions of the Income Tax Act, and unaccounted cash transactions may impact the enforceability of debts.

ORDER

1. This is an appeal against acquittal under Section 378 (4) of the Code of Criminal Procedure, filed by the original complainant challenging the judgment dated 09/03/2018 in Summary Criminal Case No.933/2016, whereby the learned Magistrate has acquitted the accused/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') on the ground that the cheque in question was in respect of an unaccounted amount which was not shown by the complainant in his Income Tax Returns and therefore cannot be said to be a legally enforceable debt or liability as contemplated under Section 138 of the NI Act.

2. The facts of the case are as under :-

(a) The complainant and the accused are cousins.

(b) The accused runs a beer shopee at Karanja

(c) On 23/03/2016 the accused is claimed to have taken a hand loan of Rs.1,50,000/- for his business purpose from the complainant without any interest, for the repayment of which, it is claimed that the accused had issued a cheque bearing No.159114 dated 19/05/2016 in favour of the complainant in the sum of Rs.1,50,000/- on his account No.1003031000425 with the Akola Urban Cooperative Bank Limited, Branch at Karanja.

(d) The said cheque was presented on 07/07/2016 and was dishonoured for want of sufficient funds in the account of the accused as per the advice dated 11/07/2016 of the complainant's bank which was accompanied with the memo of the accused/Bank indicating this.

(e) On 13/07/2016 a statutory notice was issued through counsel making a demand, which was not claimed, leading to filing of the complaint on 10/08/2016.

(f) During the trial, the complainant examined himself alone and none else.

(g) The accused did not examine himself or any other witness.

(h) During his statement under Section 313 of the Code of Criminal Procedure (pg.26 of the paper-book), the accused stated that the complainant used to come to his residence and had taken the cheque from his house and has filed a false complaint.

(i) He admitted that he was running a beer shopee at Karanja.

3. Shri Digvijay Khapre, learned counsel for the appellant submits that the sole ground, for dismissal of the complaint, as is apparent from the impugned judgment, was that the amount was not shown in the Income Tax Returns of the complainant. It is contended that this cannot be the ground to dismiss the complaint when the learned Magistrate categorically found that the cheque in question has been signed by the accused and the plea put forth regarding the relationship between the complainant and the accused as well as the fact that the accused was running a beer shopee under the name of Tanmay Beer Shopee, was found to be correct. It is also submitted that since there was no dispute that the cheque was dishonoured for insufficient funds in the account of the accused, the presumption under Section 139 of the NI Act, clearly became attracted, and that being so, the contention, that the amount was not shown in the Income Tax Returns, would not be of such a consequence so as to dispel the presumption under Section 139 of the NI Act. He therefore submits that once the learned Magistrate having found that the cheque was signed by the accused and the dishonour having been proved, the accused could not have been acquitted and the judgment impugned, is therefore liable to be quashed and set aside. He further submits that the complainant, was never put to notice, regarding this plea of being required to prove the entry in regard to the loan in his Income Tax Returns, on account of the presumption being attracted under Section 139 the NI Act, on account of which also the impugned judgment stands vitiated.

4. Shri R.S. Kurekar, learned counsel for the respondent supports the impugned judgment and submits, that for the presumption under Section 139 of the NI Act to be attracted it was necessary for the complainant to demonstrate that the cheque was received in discharge, in whole or in part of any debt or oth