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TMI Blog2018 (3) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to give any particulars as to the date and time, when he advanced the amount of ₹ 4,50,000/-, which he had paid in cash. There is no writing obtained from the respondent no. 1 and it is also not shown that the said amount was reflected in the Income Tax Returns of the firm, in as much as, the complaint was filed in the capacity of the proprietor of the firm. Coming to the scope, ambit and powers of this Court while considering an appeal against acquittal, it is now well settled that in an appeal of the present nature, this Court cannot re-appreciate the material unless and until the view taken by the subordinate Court is perverse or is an implausible view. It is well settled that where two views are equally possible, this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on his account with Syndicate Bank, Sanquelim Branch, which got dishonoured on presentation. The appellant issued a statutory notice on 30.05.2008, which was neither replied nor complied with by the respondent no. 1. This led the appellant to file a complaint under Section 138 of the Act. The appellant examined himself and produced the subject cheque along with the cheque return memo and the copy of the legal notice and the A/D card. 4. The learned Magistrate by judgment and order dated 03.05.2011, convicted the respondent no. 1 for the offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for six months and to pay fine of ₹ 10,000/- and in default to undergo simple imprisonment for tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised. 7. I have carefully considered the circumstances and the submissions made. The case made out by the appellant is that he was working in Central Bank of India and has since retired and that he had paid ₹ 6,00,000/- to the respondent no. 1, out of which, a substantial amount i.e. ₹ 4,50,000/- were paid in cash, out of the retirement dues. Admittedly, there is no document got executed at the time when the said amount was advanced. The notice as well as the complaint is silent about the date on which the amount is allegedly advanced to the respondent no. 1. Even during the course of his evidence, the appellant failed to give the date on which the amount was given to the respondent no. 1. In the cross examination, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm, in as much as, the complaint was filed in the capacity of the proprietor of the firm. 8. The decision in the case of Narayanrao Ukandrao Paikrao (supra) cannot come to the aid of the appellant. In that case, on facts, it was held that the statutory presumption was not rebutted. As noticed earlier, the question about whether, the presumption stands rebutted, would be peculiar to facts and circumstances of each case. In the case of Krishna P. Morajkar (supra), this Court has held that non-compliance with Section 269SS of the Income Tax Act (about the requirement to pay the sum of more than ₹ 20,000 by a cheque), would not be relevant, as it would be essentially, a matter between the concerned person and the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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