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TMI Blog2018 (9) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... t expressing satisfaction that the appeal entails a substantial question of law and without framing a substantial question of law, notice of the appeal was issued and subject to the appellant depositing 50% of the decretal amount in this Court, execution stayed. Vide subsequent order dated 3rd November, 2017, the trial court record was requisitioned. 3. The counsel for the appellant / defendant and the counsel for the respondent / plaintiff have been heard and the Suit Court record requisitioned perused. 4. On enquiry from the counsel for the appellant / defendant as to what is the substantial question of law that arises in this appeal, the counsel for the appellant / defendant states that the First Appellate Court has allowed the appeal of the respondent / plaintiff and passed a decree in favour of the respondent / plaintiff and against the appellant / defendant referring to, in para 13 of the impugned judgment, Section 139 of the Negotiable Instruments Act, 1881 (NI Act) and which is but a presumption of the cheque having been given in discharge of antecedent liability. It is argued that on the basis of the said presumption alone, the suit of the respondent / plaintiff against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D as Beldar. I do not know anything about present case. It is correct that I have been summoned in the present case. XXXXX by Sh. C.M. Sharma, counsel for the plaintiff. I do not know Ranvir Singh (defendant). I never meet with Ranvir Singh even I cannot identify Ranvir Singh on today. It is wrong to suggest that I am having friendly relation with Ranbir Singh due to which I am appearing as witness on today. RO&AC Sd/- (Bhawani Sharma) ACJ/CCJ/ARC (Shahdara), KKD, Delhi 22.11.2014" and, (ix) that the respondent / plaintiff, in cross-examination of the said Om Prakash, did not even suggest that the amount of which loan was claimed to have been given by the respondent / plaintiff, was received by the respondent / plaintiff in a 'committee' operated by Chhote Lal. 7. I have enquired from the counsel for the appellant / defendant, what is the evidence of loan of Rs. 8,000/- claimed to have been taken by appellant/defendant from Chhote Lal and whether the appellant / defendant examined Chhote Lal as his witness. 8. The counsel for the appellant / defendant states that though Chhote Lal was not examined and there is no document with respect to the said loan but the appellant / d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a Revision Petition against dismissal of a complaint under Section 138 of the NI Act was concerned with a loan of Rs. 15 lacs. In fact, the counsel for the appellant / defendant is not aware whether any further challenge was made to the judgment aforesaid of the Bombay High Court or whether the same has been relied upon in any other judgments. 17. The High Court of Bombay in Sanjay Mishra supra relied on Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54 laying down that "Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability". The High Court of Bombay, in view of the said judgment of the Supreme Court, reasoned that even if presumption is not rebutted, in order to attract Section 138 of the Negotiable Instruments Act, the debt has to be a "legally enforceable debt," as is clear from the explanation to Section 138 which provides that for the purposes of the said Section, the debt or other liability means a legally enforceable debt or other liability. 18. Krishna Janardhan Bhat supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be a legally recoverable liability, reasoning (i) that there is no prohibition in the Income Tax Act or in any other law on recovery of amounts not disclosed in Income Tax Returns; (ii) the entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for; (iii) if some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed, simply because there is some infraction of the provisions of the Income Tax Act; (iv) infraction of provisions of Income Tax Act would be a matter between the Revenue and the defaulter and advantage thereof cannot be taken by the borrower; (v) to say, that an amount not disclosed in the Income Tax Returns becomes irrecoverable, would itself defeat the provisions of Section 138 of the Negotiable Instruments Act; (vi) moreover, the moment a person seeks to recover through a cheque an amount advanced in cash, it gets accounted for in the system and the Revenue Authorities can keep a track of that and if necessary tax the person; and, (vii) to brand an amount which is not show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles, it would not be a substantial question of law. It was further held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact being the first Appellate Court. Mere appreciation of facts, documentary evidence was held to be not raising a question of law. Even in Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 it was held: "To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned." 26. Mention may also be made of Hero Vinoth Vs. Sheshammal (2006) 5 SCC 545 holding as under: "24. The principles relating to Section 100 CPC, relevant for this case, may be summarised thus:- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if the finding of fact is wrong, that by itself will not constitute a question of law; the wrong finding should stem out of a complete misreading of evidence or it should be based only on conjunctures and surmises; (e) if to a reasonable man, the conclusion on the facts in evidence made by the Courts below is possible, there is no perversity; (f) inadequacy of evidence or a different reading of evidence is not perversity; (g) Code of Civil Procedure (Amendment) Act, 1976 introduced a definite restriction on the exercise of jurisdiction in a Second Appeal; (h) where it is found that findings stand vitiated on wrong test and on the basis of assumptions and conjunctures and resultantly there is an element of perversity involved therein, will the High Court be within its jurisdiction to deal with the issue; this is however only in the event such a fact is brought to light explicitly; (i) the findings of fact recorded by Court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant / inadmissible material or if the findings is against the weight of evidence or if the finding so outrageously d ..... 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