2018 (1) TMI 120 - HC - Indian Laws

Cheque bounce - enforceable debt or not - Cash Loan - Contravention of Section 269SS of the IT Act - complaint under Section 138 of the Negotiable Instrument Act - Held that - Section 269-SS only provides for the mode of acceptance payment or repayment in certain cases so as to counteract evasion of tax. However Section 269-SS does not declare all transactions of loan by cash in excess of 20, 000/- as invalid illegal or null and void as the main object of introducing the provision was to curb and unearth black money - the order of acquittal as passed cannot withstand judicial scrutiny and deserves to be set aside.

Summary

Issues Involved:
1. Interpretation of Section 139 of the NI Act regarding the presumption of legally enforceable debt.
2. Adverse inference due to non-examination of complainant's friends.
3. Violation of Section 269 SS of the Income Tax Act and its impact on loan recoverability.
4. Non-disclosure of the loan in the complainant's Income Tax Return.

Issue-wise Detailed Analysis:

1. Interpretation of Section 139 of the NI Act:
The appellant's complaint under Section 138 of the NI Act was dismissed on the ground that Section 139 does not presume the existence of a legally enforceable debt. The trial Magistrate's interpretation was based on the Supreme Court's decision in Krishna Janardhan Bhat vs. Dattatraya G. Hegde. However, this view was later overruled by a three-judge bench of the Supreme Court in Rangappa vs. Sri Mohan, which clarified that the presumption under Section 139 does include the existence of a legally enforceable debt or liability. The court observed that "the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability." This presumption is rebuttable, and the accused can contest it by raising a probable defense. The standard of proof required for the accused to rebut this presumption is 'preponderance of probabilities.'

2. Adverse Inference Due to Non-examination of Complainant's Friends:
The trial Magistrate drew an adverse inference because the complainant did not examine his friends from whom he allegedly borrowed money. The High Court stated that drawing adverse inference is not an absolute proposition and depends on the facts and circumstances of the case. The question of adverse inference is left open for the trial Magistrate to consider during the final hearing of the complaint.

3. Violation of Section 269 SS of the Income Tax Act:
The trial Magistrate held that the loan was not recoverable because it violated Section 269 SS of the IT Act, which mandates that loans above ?20,000 must be made through an account payee cheque or bank draft. However, Section 271D of the IT Act, which imposes a penalty for such violations, does not declare such transactions null and void. The Supreme Court in Asstt. Director of Inspection Investigation vs. A.B. Shanthi clarified that Section 269 SS aims to curb tax evasion and does not invalidate cash transactions exceeding ?20,000. Therefore, the payer can still recover the money even if the transaction violated Section 269 SS.

4. Non-disclosure of the Loan in the Complainant's Income Tax Return:
The trial Magistrate acquitted the accused because the loan was not shown in the complainant's Income Tax Return, relying on the Delhi High Court's judgment in Vipul Kumar Gupta vs. Vipin Gupta. However, the High Court noted that the facts of the present case differ significantly. The amount involved here is ?1,50,000, with only ?50,000 advanced by the complainant and the remaining ?1,00,000 borrowed from friends. The reliance on the Delhi High Court judgment was misplaced, and the non-disclosure in the Income Tax Return should not have led to acquittal.

Conclusion:
The High Court found that the trial Magistrate had not correctly applied the law, leading to the erroneous acquittal of the accused. The order of acquittal was set aside, and the case was remanded to the trial court for a fresh decision based on the facts and in accordance with the law. The High Court expressly stated that it had not examined the relative merits of the case to avoid any prejudice to the parties. The parties were directed to appear before the trial Magistrate on 13.11.2017 for further proceedings.