A cheque issued for an unaccounted debt does not constitute a legally enforceable liability under the Negotiable Instruments Act.

JUDGMENT:

. The submissions of the learned senior counsel appearing for the applicant were heard in support of this application under sub-section 4 of section 378 of the Code of Criminal Procedure, 1973.

2. The applicant is the complainant. The applicant filed a complaint against the 1st respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act).

3. With a view to appreciate the submissions made by the learned senior counsel appearing for the applicant, it will be necessary to refer to the facts of the case in brief. According to the case of the applicant the 1st respondent approached him in September 2004 through one Mrs.Kalayni Singh. The said Mrs.Kalyani Singh was known to the applicant. The 1st respondent represented that she was in need of financial assistance and she agreed to return the amount advanced within a period of three months to the 1st respondent. The applicant advanced a friendly loan of Rs.15 lacs to the 1st respondent. She executed a hundi on 15th September 2004 in the sum of Rs.15 lacs and also issued a cheque dated 28th December 2004 favouring the applicant. The said cheque was dishonoured and after issuing notice, the present complaint was filed by the applicant. The learned trial Judge passed an order of acquittal. The learned Judge held that the applicant has failed to establish that the cheque was issued by the 1st respondent in discharge of legal liability of the loan amount. The learned Judge observed that the 1st respondent has denied her signatures on the bill of exchange as well as the cheque subject matter of the complaint. The learned Judge has taken into account various circumstances borne out by the evidence on record and has passed order of acquittal. The learned Judge also considered the admission of the applicant that the amount advanced was an unaccounted amount which was not disclosed to the Income Tax Authority.

4. The learned senior counsel appearing for the applicant submitted that there is evidence on record to show that the 1st respondent accepted the liability to repay the loan of Rs.15 lacs. He submitted that the defence that the cheque and bill of exchange has not been signed by the 1st respondent has not been substantiated. When attention of the learned senior counsel appearing for the applicant was invited to the categorical admission of the applicant that the entire amount subject matter of the loan was an unaccounted cash amount which was not disclosed in the Income Tax Return, he submitted that this is no ground to hold that the presumption under section 139 of the said Act stands rebutted. He submitted that even assuming that the amount advanced was an unaccounted money, at the most the applicant will face an action under the Income Tax Act, 1961 but this is not a ground to say that the presumption under section 139 of the said Act stood rebutted. He submitted that as the liability to repay a sum of Rs.15 lacs on the part of the 1st respondent was established, the learned Judge has committed an error by acquitting the 1st respondent.

5. He submitted that mere fact that the amount advanced is not disclosed in the Income Tax Returns by itself cannot rebut the presumption under section 139 of the said Act in every case. He has placed reliance on a decision of this Court dated 16th January 2009 in Criminal Application No.3964 of 2007 (R.R.Dubey Vs. Shamprakash Mishra & Ors.).

6. I have given careful consideration to the submissions. I have perused a copy of the complaint and notes of evidence. In the cross-examination, 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’