JUDGMENT :

The question referred to the Division Bench for being answered reads as under :-

“Whether in case the transaction, is not reflected in the Books of account and/or the Income Tax Returns of the holder of the cheque in due course and thus is in violation to the provisions of Section 269-SS of the Income Tax Act, 1961 whether such a transaction, can be held to be “a legally enforceable debt” and can be permitted to be enforced, by institution of proceedings under Section 138 of the Negotiable Instruments Act ?”

2. The reference arises in the light of the proceedings initiated by the appellant-complainant under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act of 1881’). The complainant had advanced a handloan of Rupees One Lakh Fifty Thousand to the respondent-accused. In lieu of that the accused issued a cheque for the aforesaid amount dated 19.05.2016 drawn in favour of the complainant. The said cheque was dishonoured for want of sufficient funds as per the Bank Advice dated 11.07.2016. On 13.07.2016 a statutory notice was issued under Section 138 of the Act of 1881. The trial Court dismissed the said complaint principally on the ground that the amount stated to be advanced to the accused had not been shown in the Income Tax returns of the complainant. Being aggrieved by the aforesaid adjudication the complainant has preferred the present appeal under Section 378(4) of the Code of Criminal Procedure, 1973.

3. The learned Single Judge while hearing this appeal under Section 378(4) of the Code of Criminal Procedure, 1973 was confronted with the decisions in Krishna P. Morajkar Versus Joe Ferrao & Another [2013 Cr.L.J. (NOC) 572], Bipin Mathurdas Thakkar Versus Samir & Another [2015 SCC OnLine Bom 305] and Pushpa Sanchalal Kothari Versus Aarti Uttam Chavan [2021(5) Mh.L.J. 121]. These decisions are rendered by the learned Single Judges taking the view that even if the amount in question is not reflected in the Income Tax returns of the complainant the same would not be of much consequence in the proceedings under Section 138 of the Act of 1881. The learned Single Judge then referred to the decision in Sanjay Mishra Versus Kanishka Kapoor @ Nikki & Another [2009 (4) Mh.L.J. 155] delivered by another learned Single Judge that the amount not disclosed in the Income Tax returns by the complainant could not be stated to be an amount due towards a legally enforceable liability. The learned Single judge was unable to agree with what was held in Krishna P. Morajkar, Bipin Mathurdas Thakkar, and Pushpa Sanchalal Kothari (supra). He expressed his agreement with the view taken in Sanjay Mishra (supra). Having noticed the aforesaid divergent views and by observing as to whether the benefit of law by invoking Sections 138 to 147 of the Act of 1881, a complainant could be permitted to recover unaccounted cash when such transaction is prohibited by Section 269-SS of the Income Tax Act, 1961 (for short, ‘the Act of 1961’) being an issue of seminal importance having wide ramifications, the aforesaid question was framed for being answered by the Division Bench vide order dated 25.01.2023. It is in this manner that we are called upon to answer the aforesaid question.

4. Shri Pushkar Deshpande, learned counsel appearing for the appellant-complainant referred to the judgments rendered by the learned Single Judges that have led to the making of the reference. Relying upon the decisions in Krishna P. Morajkar, Bipin Mathurdas Thakkar and Pushpa Sanchalal Kothari (supra), he submitted that there was no legal bar for seeking enforcement of the liability that is incurred on the dishonour of an instrument notwithstanding the fact that the amount advanced is not shown in the Income Tax returns of the person advancing such amounts. Referring to the decision of the Hon’ble Supreme Court in Rangappa Versus Sri Mohan [(2010) 11 SCC 441], it was submitted that the Hon’ble Supreme Court partly overruled its earlier decision rendered by