((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3964 OF 2007 Rammonarath Ram Adhin Dubey Applicant versus Shyamprakash Parasnath Mishra and others Respondents Shilpa G. Joshi for applicant. Kanishk Jayant and Jagdish Desai for respondent no.1. A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 16th January 2009 PC : 1. Heard learned counsel for the applicant and learned counsel for the first respondent. The prayer in this application is for grant of a special leave to prefer an appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. By the order impugned, the first respondent has been acquitted of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The case of the applicant-complainant is that the first ((-2-)) respondent had taken a loan of Rs.8.00 lakhs from him and had mortgaged his property by executing a Deed of Mortgage dated 10th July 1998 in his favour. The case of the applicant is that the first respondent was to repay the amount within a period of one year from the date of execution of the deed of mortgage. On 15th November 2000, a cheque in the sum of Rs.8.00 lakh was issued by the first respondent in favour of the applicant. According to the case of the applicant, the cheque was issued towards the discharge of the liability of loan. The said cheque was dishonoured and thereafter the complaint has been filed. 2. The learned counsel for the applicant invited my attention to the findings recorded by the learned Judge. She pointed out that the defence of the first respondent that he had not signed and executed the deed of mortgage has not been accepted and in fact the issue of execution of the deed of mortgage has been decided in favour of the applicant. She submitted that in view of the presumption created by Sections 118 and 139 of the said Act of 1881, the applicant was under no obligation to lead evidence to show that he had advanced a ((-3-)) sum of Rs.8.00 lakh to the first respondent and in fact the burden to rebut the presumption was on the first respondent. She submitted that the learned Judge has committed an error by finding fault with the applicant for not producing the statement of bank account from which the amount of Rs.8.00 lakh was allegedly withdrawn by the applicant. She submitted that failure to disclose the amount of loan in Income Tax Returns is not sufficient to rebut the presumption under section 139 of the said Act of 1881. 3. The learned counsel for the applicant invited my attention to the decision of this Court in the case of Vasudev Ramchand Ahuja v/s. Vilas Shripati Kamble and anr. (2006[2]-Bom.C.R.[Crim]-1). She submitted that in the facts of the case before this Court it was observed that the fact that loan was not disclosed in the income tax return and in the books of accounts was relevant. She also invited my attention to the another judgement of this Court in the case of Dilip Apte Vs.Nilesh P. Salgaonkar and another (2006[6]-Bom.C.R.-653). She submitted that this Court has held that the contention that ((-4-)) the loan advanced by the complainant in the complaint under section 138 of the said Act of 1881 was not shown in the income tax return is not sufficient to rebut the presumption created by the statute. She submitted that in any case there appears to be a divergence of opinion in the aforesaid two decisions and therefore this issue will require consideration by a larger bench. 4. I have perused the impugned order. I have carefully considered the submissions. The fact that the loan of Rs.8.00 lakhs is not disclosed in the income tax return filed by the applicant is not the only ground on which the learned Trial Judge has held against the applicant. In the cross examination of the applicant, he deposed that he had withdrawn a sum of Rs.8.00 lakhs from his bank. He stated that he was unable to recall from which bank he had withdrawn the amount. He was also unable to state whether the statement of account has been attached with his income tax return for the year 1998. The learned Judge in paragraph 45 of the impugned judgement has noted that the cross examination of the applicant was deferred to enable the applicant to produce the bank ((-5-)) statement. However, he did not produce any document. That is why the learned Judge has applied clause (g) of the illustrations under section 114 of the Indian Evidence Act, 1872 for drawing an adverse inference against the applicant. 5. The signature on the deed of mortgage was disputed by the first respondent. While recording finding on this aspect the learned Judge has held that there is mere denial by the first respondent of the signature on the mortgage deed and the first respondent has not examined any witness. The finding of the learned Judge is that it cannot be said that the signature on the mortgage deed is not that of the accused. 6. It is well settled proposition of the law that the presumptions under sections 118 and 139 of the said Act of 1881 can be rebutted on the basis of available material on record and it is not necessary for the accused to enter the box. The first ground on which the presumption has been held as rebutted is the failure of the applicant to show the advance of Rs.8.00 lakhs in his income tax return and the ((-6-)) second ground is of failure of the applicant to substantiate his case that he had withdrawn the sum of Rs.8.00 lakhs from his bank account. If these two factors are considered, in the facts of the case, the view taken by the learned Judge is certainly a possible view which could be taken on the basis of evidence on record. 7. It is true that the failure of the complainant in a complaint under section 138 of the said Act of 1881 to disclose the amount advanced by him to the accused in his income tax return by itself cannot rebut the presumption under section 139 of the said Act of 1881 in every case. Whether the said omission rebuts the presumption or not depends on the facts and circumstances of every case. In the decision of this Court in the case of Vasudeo (supra) it is not laid down as a matter of proposition of law that in every case the failure to disclose the loan amount in the income tax return of the complainant will have result of rebuttal of presumption. Similarly in the case of Dilip Apte (supra) no law has been laid down on this aspect. Both the cases have been decided in the light of peculiar facts before this Court. In the case of Dilip ((-7-)) Apte (supra) this Court observed that every person who gives friendly loan especially the one which is payable on demand within a short time may not necessarily show the said amount in the income tax return. Therefore, in the facts of the case, it was held that the failure to show the amount advanced in the income tax return was not sufficient to rebut the presumption. Therefore, there is no conflict in the decisions as the view taken therein is in the light of the facts of the cases before this Court. 8. In the present case the loan amount is not a small amount. The amount was repayable after one year from the date of execution of the Mortgage Deed. According to the applicant, the amount was withdrawn from his bank account and therefore, the failure to disclose the amount in the income-tax return is certainly relevant. This was a fit case to draw adverse inference on account of the failure of the applicant to produce the statement of Bank Account. 9. As the view taken by the learned Trial Judge is a possible view, no interference can be made in the appeal against acquittal. No ((-8-)) case is made out for grant of leave. The application is rejected. It is, however, made clear that the observations made in this order are for limited purpose of considering the prayer for grant of special leave and none of the observations made herein shall be construed as any finding on the alleged liability of the first respondent or any finding on the right of the applicant with regard to the deed of mortgage. (A.S.OKA, J.)