PRAKASH MADHUKARRAO DESAI Vs. DATTATRAYA SHESHRAO DESAI

JUDGEMENT

(1.) This is an appeal against acquittal under Sec. 378 (4) of the Code of Criminal Procedure, filed by the original complainant challenging the judgment dtd. 09/03/2018 in Summary Criminal Case No.933/2016, whereby the learned Magistrate has acquitted the accused/respondent for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') on the ground that the cheque in question was in respect of an unaccounted amount which was not shown by the complainant in his Income Tax Returns and therefore cannot be said to be a legally enforceable debt or liability as contemplated under Sec. 138 of the NI Act.

(2.) The facts of the case are as under :-

(3.) Shri Digvijay Khapre, learned counsel for the appellant submits that the sole ground, for dismissal of the complaint, as is apparent from the impugned judgment, was that the amount was not shown in the Income Tax Returns of the complainant. It is contended that this cannot be the ground to dismiss the complaint when the learned Magistrate categorically found that the cheque in question has been signed by the accused and the plea put forth regarding the relationship between the complainant and the accused as well as the fact that the accused was running a beer shopee under the name of Tanmay Beer Shopee, was found to be correct. It is also submitted that since there was no dispute that the cheque was dishonoured for insufficient funds in the account of the accused, the presumption under Sec. 139 of the NI Act, clearly became attracted, and that being so, the contention, that the amount was not shown in the Income Tax Returns, would not be of such a consequence so as to dispel the presumption under Sec. 139 of the NI Act. He therefore submits that once the learned Magistrate having found that the cheque was signed by the accused and the dishonour having been proved, the accused could not have been acquitted and the judgment impugned, is therefore liable to be quashed and set aside. He further submits that the complainant, was never put to notice, regarding this plea of being required to prove the entry in regard to the loan in his Income Tax Returns, on account of the presumption being attracted under Sec. 139 the NI Act, on account of which also the impugned judgment stands vitiated.