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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 ..... applied. This Second Appeal does not entail any substantial question of law and has no merit to be heard further - appeal dismissed. - RSA 175/2017 & CM No.24021/2017 (for stay) - - - Dated:- 12-9-2018 - MR. RAJIV SAHAI ENDLAW J. Appellant Through: Mr. S.K. Jain, Adv. Respondent Through: Mr. C.M. Sharma, Adv. 1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment [dated 18th February, 2017 in RCA No.196/2016 (Unique ID No.02402C0034422016) of the Court of Additional District Judge, Shahdara] allowing the First Appeal filed by the respondent / plaintiff against the judgment and decree [dated 25th April, 2016 in Civil Suit No.275/2010 (Unique ID No.02403C0221442010) of the Court of Additional Civil Judge, Shahdara] of dismissal of suit filed by the respondent / plaintiff against the appellant / defendant for recovery of ₹ 1,25,000/- along with interest and costs. Resultantly, vide the impugned judgment, a decree has been passed in favour of the respondent / plaintiff and against the appellant / defendant for recovery of ₹ 1,25,000/- with interest. 2. The appeal came up first before this Court on 12th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of respondent / plaintiff; (iv) that in the course of the evidence, it was admitted by the respondent / plaintiff that Chhote Lal is the brother of the brother of the wife of the respondent / plaintiff; (v) that the respondent / plaintiff claimed that he was possessed of the sum of ₹ 1,25,000/- loaned to the appellant / defendant, owing to having collected a Committee operated by one Om Prakash; (vi) that the respondent / plaintiff further admitted that he had not reflected the said money in his income tax returns; (vii) that the respondent / plaintiff, appellant / defendant and Chhote Lal aforesaid are all beldars i.e. masons and in fact the appellant / defendant had given the aforesaid blank signed cheque to Chhote Lal as security for a loan of ₹ 8,000/- taken by the appellant / defendant from the said Chhote Lal and which loan has been repaid; (viii) that the appellant / defendant examined Om Prakash from whom the respondent / plaintiff claimed to have picked up the Committee but the said Om Prakash appearing as DW3 deposed as under: DW3 Statement of Sh. Om Prakash, S/o Sh. Ratan Lal, R/o B-4/380, Nand Nagri, Delhi. ON SA I am summon witness in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanishka Kapoor @ Nikki 2009 SCC OnLine Bom 290 where it was held that liability to repay unaccounted cash is not a legally enforceable liability within the meaning of explanation to Section 138 of the NI Act and reliance therein was placed on Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders Agencies Ltd. (2001) 6 SCC 463. 12. I have enquired from the counsel for the appellant / defendant, whether the appellant / defendant is an income tax assessee and had shown the transaction claimed with Chhote Lal in his income tax return. 13. The counsel for the appellant / defendant states that appellant / defendant is not an income tax assessee and thus the question of appellant / defendant showing the transaction with Chhote Lal in the income tax returns did not arise. It is however stated that the respondent / plaintiff admitted being an income tax assessee. 14. I have further enquired from the counsel for the appellant / defendant, under which provision of the income tax laws, such loan transactions are required to be reflected in the income tax returns. 15. The counsel for the appellant / defendant draws attention to the judgment aforesaid of the Bombay High Court wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoned that (i) Section 139 is an example of a reverse onus clause that had been included in furtherance of the legislative objective of improving the credibility of negotiable instruments; (ii) while Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation; (iii) that the test of proportionality should guide the construction and interpretation of reverse onus clauses; (iv) when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities; and, (v) therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. 19. Thus, the edifice of Krishna Janardhan Bhat, on which Sanjay Mishra was premised, is no longer good law and for this reason alone Sanjay Mishra supra cannot today be relied on as good law. 20. Not only so, a subsequent dicta of the Bombay High Court in Krishna P. Morajkar Vs. Joe Ferrao 2013 SCC OnLine Bom 862 disagreed with Sanja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 4 SCC 562 and Vijay Arjun Bhagat Vs. Nana Laxman Tapkire 2018 SCC OnLine SC 518 even a notice of Second Appeal under Section 100 CPC cannot be issued without framing a substantial question of law. 25. Substantial question of law is not a word/phrase of art and has been interpreted in various dicta of the Supreme Court. It has been held in Veerayee Ammal Vs. Seeni Ammal (2002) 1 SCC 134 that merely because on appreciation of evidence another view is also possible, would not clothe the High Court to assume jurisdiction on issue of fact framed by the Trial Court by terming the question as a substantial question of law. As far back as in Sir Chunilal V. Mehta Vs. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 reiterated in Kashmir Singh Vs. Harnam Singh (2008) 12 SCC 796 , it was held that the proper test for determining whether a question of law raised in a case is substantial, is whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is an open question in the sense it is not finally settled or is not far from difficulty or calls for discussion of alternative views; i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence , it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 27. Supreme Court, in Damodar Lal Vs. Sohan Devi (2016) 3 SCC 78, referring to Kulwant Kaur Vs. Gurdial Singh Mann (2001) 4 SCC 262, Gurvachan Kaur Vs. Salikram (2010) 15 SCC 530 and S.R. Tewari Vs. Union of India (2013) 6 SCC 602 held, (a) that the First Appellate Court under Section 96 CPC is the last Court of facts; (b) the High Court in Second Appeal under Section 100 CPC cannot interfere with findings of fact recorded by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f had at the contemporaneous time of loan received money from the committee . The evidence of Om Prakash thus does not rebut the presumption, even if the test of proportionality laid down in Rangappa supra is applied. 30. The First Appellate Court has also rightly reasoned, that (a) the appellant/defendant, in cross-examination of respondent/plaintiff, did not elicit the parentage or address of Om Prakash; (b) the appellant/defendant, after commencing his evidence, sought permission to file additional list of witnesses naming one Om Prakash and which permission was granted; (c) that from denial of Om Prakash examined, that he was running/operating Committee , it was clear that the Om Prakash examined was not the Om Prakash deposed of by respondent/plaintiff; (d) that the appellant/defendant, while seeking permission to file additional list of witnesses had claimed that on making enquiries he had found Om Prakash who was running committee ; and, (e) however Om Prakash who was examined, denied that he was running Committee . It is thus evident that rejection by First Appellate court, of testimony of Om Prakash examined by appellant/defendant, is not without any reason ..... 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