2012 (6) TMI 862 - HC - Indian Laws

Appellant under Section 138 of Negotiable Instruments Act - Held that - It is admitted that the appellant is income tax assessee. It is his evidence that he has included the loan in his income tax account. In this context, in the absence of production of income tax returns, it is to be held that the loan transaction should not have been shown in the account. As per the settled position of law, when the income tax assessee fails to produce income tax returns containing the loan transaction, it should have been observed that the alleged loan transaction is a an illegal one. Further, he has not disputed the genuineness of Exs.D1 to D3 and the evidence of PW2 with regard to these documents. It is also in his evidence that he does not know whether the respondent signed the cheque in his presence and he does not know who filled up the cheque. This is a piece of evidence to infer that the loan transaction may not be true. This Court is of the considered view that the loan transaction, as pleaded by the appellant is not true. There is no infirmity factually in the judgment rendered by the trial court and it does not warrant any interference and the same deserves to be confirmed and it is accordingly confirmed. The appeal is devoid of merits.

Summary

Issues: Appeal challenging judgment under Section 138 of Negotiable Instruments Act - Allegations of financial assistance, cheque issuance, and debt repayment - Acquittal by Judicial Magistrate - Appeal questioning debt recovery and cheque issuance - Dispute over missing cheque and debt acknowledgment - Evidence of income tax account and loan transaction - Lack of income tax return - Witness testimony on loan transaction validity - Confirmation of trial court judgment.

Analysis:

1. Allegations and Acquittal: The appellant filed a private complaint under Section 138 of the Negotiable Instruments Act, alleging that the respondent borrowed a sum of money and issued a cheque that was subsequently dishonored. The Judicial Magistrate acquitted the respondent, stating there was no recoverable debt. The appellant appealed this decision, challenging the debt recovery and cheque issuance.

2. Cheque Issuance and Missing Cheque: The appellant presented evidence of the cheque issued by the respondent, which was returned unpaid. The respondent claimed the cheque was missing and informed the bank accordingly. The Bank Manager acknowledged receiving the letter about the missing cheque. The court observed that the respondent had informed the bank about the missing cheque, casting doubt on the validity of the loan transaction.

3. Income Tax Account and Loan Transaction: The appellant mentioned the loan transaction in his income tax account but failed to produce the income tax return in court. The Judicial Magistrate noted discrepancies in the income tax account, questioning the credibility of the appellant's claim of running money lending and textile businesses without substantial income. The absence of income tax returns led to the inference that the loan transaction was illegal.

4. Validity of Loan Transaction: The appellant, an income tax assessee, admitted including the loan in his income tax account but did not provide the necessary returns. The court held that the failure to produce income tax returns containing the loan transaction indicated an illegal transaction. Witness testimony revealed uncertainties regarding the loan transaction's authenticity, further weakening the appellant's case.

5. Confirmation of Trial Court Judgment: The High Court upheld the trial court's decision, stating that the loan transaction alleged by the appellant was not credible. Finding no factual infirmity in the trial court's judgment, the High Court dismissed the appeal, confirming the lower court's decision. The appeal lacked merit, and the judgment was upheld without interference.

In conclusion, the High Court dismissed the Criminal Appeal, affirming the judgment of the lower court, which acquitted the respondent based on the lack of evidence supporting the appellant's claim of a valid loan transaction and recoverable debt.