Ni act
Docok
(Querist) 06 March 2018
This query is : Resolved
respected lawyers
recently my close acquaintance an elderly woman of 67 years involved in a ni case, the woman is the accused, she has taken loan from one person for 1 lakh by issuing blank promissory note and one blank cheque, after repaying the loan the friend did not return the cheque and promissory note and filed in court through his friend for 5 lakhs promissory note and 3 lakhs cheque amount. the accused did not attend the court summons for NI act and NWB is issued, one day the accused was suddenly arrested and taken to court, the police who took bribe and the other lawyer threatened her outside that if the lawyer does not sign no objection certificate she will go to jail and threatened her to tell in court she will pay amount, she admit in court that she will pay amount and next day did not attend court, again NWB is issued, the accused approached the high court to dispense the condition of 3 lakhs requirement to pay to respondent to avail the bail, the high court directed her to surrender in the lower court and take bail and ordered the court when she surrenders use normal conditions to give bail
the case has been tried, the accused through her lawyer rebutted the claim of sec 139 and the complainanat in his cross examination admitted that he is an income tax assessee and that he will fill the income tax returns of that year as he has shown the statement of loan in that but he filed the income tax returns
the accused lawyer contend with the court that the income tax assessee did not file the income tax returns as such the money would be undisclosed amount and cannot be a legally enforceable debt
the accussed lawyer also contend that even if debt exists and cheque was issued and dishonoured when the money is unaccounted it cannot be legally enforceable
the accused lawyer also contend that as per Section 269SS of IT act the amount of 5 lakhs is given in cash form and not in a cheque or dd form hence the transaction is illegal in view of law
but no matter how much the accussed lawyer contended with the court on the legality of the money the court has finally given judgement that the money legal or illegal does not matter that the accused admitted in court that day for one day that she will pay the amount and that it is binding on her and gave judgement
but the lawyer is stating that as per SC judgements and other high court judgements even if the debt exists and cheque is bounced for undisclosed amount the income tax is enough to label the money as illegal and cannot be legally recovered
he quoted mainly http://hc.tap.nic.in/hcorders/2015/crla/crla_394_2015.pdf
https://indiankanoon.org/doc/185077995/
https://indiankanoon.org/doc/164448233/
but judge is insiting on the only point that the accused enlarged on bail and now has to pay the money
the accused only told in court to enlarge on bail and she felt threatened by dire consequences by the opposition lawyer is there no relief for the accused to prosecute the complainant and win the ni appeal case sidelining the admission in court
Bhaskaran Advocate
(Expert) 07 March 2018
When an accused accepts to pay it amounts to accepting the debt. Hence sec 138 gets attracted. Other defenses like Income tax returns etc are just supportive of a case to prove that loan has not been given. No court can reverse the Judgment of conviction.
