COMMISSIONER OF INCOME TAX vs. M/S MATHOSHREE BUILDERS PVT LTD

For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

Brief facts of the case are that, the complainant has filed the private complaint in PCR No.1022 of 2011 against the accused alleging commission of offence punishable under Section 138 of NI Act. It is alleged by the complainant that the accused has approached him and he had lent an amount of Rs.8,30,000/- for construction of the house. Towards repayment of the said loan, accused has issued the cheque as per Ex.P1 dated 24.06.2011. On presentation of the cheque, the same was dishonored as the account was dormant. In spite of issuance of legal notice as per Ex.P3, accused has not repaid the cheque amount, but issued untenable reply as per Ex.P5,

The Trial Court took cognizance of the offence and summoned the accused. He denied all the charges leveled against him. The complainant examined himself as PW1, got examined his brother as PW2 and got marked Exs.P1 to P5 in support of his contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., examined himself as DW1 and got marked Exs.D1 to D4 in support of his defence. The Trial Court after taking into consideration all these materials on record, passed the impugned order acquitting the accused for the offence punishable under Section 138 of NI Act by holding that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Being aggrieved by the same, the complainant is before this Court.

Heard Sri E Ashoka, learned counsel for the appellant and Sri A C Patil, learned counsel for the respondent. Perused the materials including the Trial Court records.

Learned counsel for the appellant contended that the complainant is a businessman doing export business. He was having licence to do the business. He was having sufficient funds with him and when the accused approached him for financial help, he had lent Rs.8,30,000/- during 2011 in 5 or 6 installments. Towards repayment of the same, the cheque in question was issued which was dishonored as the account was dormant. Legal notice as per Ex.P3 was issued to the accused. The accused took a defence of total denial. He even denied that the complainant was familiar to him, but subsequently, he got marked Exs.D1 to D4 to take the defence that he had taken loan of Rs.1,00,000/- from the father of the complainant and after his death, he has repaid it to PW2 which falsifies the defence taken by the accused. Hence, the presumption under Section 139 of NI Act comes into operation and the accused is liable for conviction. The Trial Court has committed an error in acquitting the accused. Accordingly, he prays for allowing the appeal.

Per contra, learned counsel for the respondent opposing the appeal submitted that the complainant has not proved his financial capacity to lend such huge amount of

In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment passed by the Trial Court suffers from perversity or illegality, which calls for interference by this Court?" My answer to the above point is in the 'Negative' for the following: REASONS

In the complaint, it is the specific contention of the complainant that he had lent an amount of Rs.8,30,000/- to the accused. The complainant does not say as to when the loan

It is pertinent to note that during cross examination, the complainant categorically admitted that the cheque - Ex.P1 appears to be of the year 2000. When such fatal admission is given, it is for the complainant to substantiate his contention. Nothing has been placed before the Court to show since when the account of the accused

Even though the accused has taken the defence of total denial while issuing reply as per Ex.P5, in his evidence when he deposed as DW1, he states that he had availed loan of Rs.1,00,000/- from the father of the complainant and had repaid the amount in installments. He has produced Exs.D1 to D4 in support of his defence. When the complainant has not discharged his initial burden of proving lending of amount and issuance of cheque towards legally enforceable debt, the presumption under Section 139 of NI Act will not enure to his benefit. Under such circumstances, the accused is entitled for acquittal.

I have gone through the impugned judgment passed by the Trial Court. It has taken into consideration all the oral and documentary evidence placed before it and has arrived at a right conclusion. I do not find any perversity or illegality in the judgment passed by the Trial Court. There are