Per Contra, Mr. Rodrigues, Learned Counsel Appearing Forrespondent v. Kanishkakapoor In Criminal Application

IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 52 OF 2011INSTAMP NUMBER MAIN NO. 3208 OF 2010 SHRI. SHAIKH HUSSAIN VersusMR. MINGUEL THOMAS LOURENCO AND ANR., ... Applicant ... Respondents Mr. A. D. Bhobe, Advocate for the applicant. Mr. Vivek A. Rodrigues, Advocate for respondent no.1. P.C. -Coram:A. P. LAVANDE, J.-Date:14th June, 2012 Heard Mr. Bhobe, learned Counsel for the applicant and Mr.Rodrigues, learned Counsel for respondent no.1. 2. By this application, the applicant seeks Special Leave toAppeal against the judgment and order dated 11/10/2010 passed bythe Sessions Judge, North Goa, Panaji in Criminal AppealNo.122/2009 allowing the appeal preferred by the respondent no.1against the judgment and order of conviction dated 17/07/2009passed by the learned Judicial Magistrate, First Class, Ponda inCriminal Case No.749/OA/2006/A. 3. The applicant herein filed the above criminal case againstrespondent no.1 for dishonour of cheque dated 22/08/2006 for Rs.2Lakhs drawn on Indusland Bank, Panaji, Goa. It was the case of thecomplainant that the accused agreed to sell to the complainant scrapworth Rs.2 Lakhs and towards sale, an amount of Rs.2 Lakhs was paid to the accused by cash. Thereafter, the transaction did notmaterialise for some reason and, therefore, the accused issued chequefor Rs.2 Lakhs to the complainant which was dishonoured. LearnedMagistrate, upon appreciation of the evidence led by the complainantand the accused, held the accused guilty and convicted and sentencedhim for the offence punishable under Section 138 of NegotiableInstruments Act. An appeal was preferred to the Court of Sessionsagainst the said judgment and order. 4. Learned Sessions Judge, North Goa, Panaji by the impugnedjudgment has acquitted respondent no.1, inter alia, on the ground thatthe amount of Rs.2 Lakhs was not disclosed by the complainant inhis books of accounts for the purpose of income tax. 5. Mr. Bhobe, learned Counsel for the appellant submitted thatthe defence taken by respondent no.1/ accused is contrary to the replyto the notice given by the complainant and as such, could not havebeen accepted by the learned Sessions Judge. Learned Counselfurther submitted that the findings recorded by the Sessions Judge arepatently perverse and, therefore, interference is warranted with theimpugned judgment and order. 6. Per contra, Mr. Rodrigues, learned Counsel appearing forrespondent no.1 supported the impugned judgment and order andplaced reliance upon the unreported judgment of the learned SingleJudge of this Court in the case of Sanjay Mishra Vs. KanishkaKapoor in Criminal Application No.4694/2008 in support of apreposition that if the cheque amount is not disclosed in the books ofaccounts for the purpose of income tax, the same cannot be treated aslegally recoverable liability. 7. Having heard the learned Counsel for the applicant and respondent no.1, I am of the considered opinion that the learnedSessions Judge was justified in allowing the appeal on the groundthat the cheque amount of Rs.2 lakhs was not disclosed in income taxreturns. In my view, the issue is squarely covered against theapplicant by the unreported judgment delivered by the learned SingleJudge of this Court in the case of Sanjay Mishra (supra) in which thelearned Judge has held that if the cheque amount, which issubstantial, is not disclosed in the income tax returns, cannot betreated as legally recoverable liability. I am in respectful agreementwith the view taken by learned Single Judge in the case of SanjayMishra (supra). Even if Mr. Bhobe is right insofar as the othercontentions are concerned, respondent no.1 is entitled to succeed onthe above ground. Therefore, no case is made out for interferencewith the impugned judgment and order. Hence, the application forSpecial Leave to Appeal is dismissed. Consequently, the appeal alsostands dismissed. No order as to costs. SMA A. P. LAVANDE, J.