1 APPLN 361 OF 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.361 OF 2011 Pathan Galibkhan Amanulla Khan .. Applicant -versus Pathan Ismalkhan Chandkhan and ors .. Respondents. WITH RIMINAL APPLICATION NO.362 OF 2011 Pathan Galibkhan Amanulla Khan .. Applicant -versus Pathan Ismalkhan Chandkhan and ors .. Respondents. Mr. Pravartak Pathak, for the applicant. Ms. R. M. Gadhavi, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 29th November, 2011 P.C. 1. These are applications for leave to file appeal against acquittal of the respondent in S.C. C. No.6432 of 2007 and S.C.C. No.6433 of 2007 for the offence punishable under Section 138 of the Negotiable Instruments Act, rendered by the learned Judicial Magistrate First Class, Court No.3, Nashik. In both the cases, the learned Magistrate, had relied on a decision of this Court in Sanjay Mishra v. Kanishka Kapoor @ Nikki & Anr., reported in 2009 (5) Bom.C.R. 464, which in turn is based on the decision of the Supreme Court in Krishna 2 APPLN 361 OF 2011 Janardhan Bhat v. Dattatraya G. Hegde, reported in 2008 All MR (Cri.) 1164 (SC). In Rangappa v. Mohan, reported in 2010 Cri.L.J. 2871, a Three Judge Bench of the Supreme Court has specifically ruled that the observations in Krishna Janardhan Bhat’s case (supra) that the presumption mandated by Section 139 of the Act does not include existence of a legally enforceable debt or liability were not correct. Therefore, the foundation on which the learned Magistrate has come to hold in favour of the respondent is itself doubtful. The learned counsel for the respondent submitted that the Three Judge Bench has not over-ruled the earlier decision in Krishna Janardhan Bhat’s case and that it had specifically stated in para 14 that, only to the extent of presumption provided by Section 139 Krishna Janardhan Bhat stood over-ruled. Para 14 specifically recites that the observations of the Three Judge Bench do not in any way cast doubt on the correctness of the decision in Krishna Janardhan Bhat’s case since it was based on specific facts and circumstances therein. 2. As far as facts are concerned, they will not give rise to any binding precedent and therefore the question as to what part of the decision in Krishna Janardhan Bhat’s case still remains to be followed by inferior Courts would have to be examined. Further, whether a person has complied with the 3 APPLN 361 OF 2011 requirements of Section 269SS of the Income-Tax Act or not while making the payment of advance in cash may be a matter which could be dealt with appropriately by the revenue authorities under the Income-Tax Act. It is not that Section 271D makes advancing amounts in cash an offence. It only prescribes a penalty for such advances. Once the Three Judge Bench of the Supreme Court holds that presumption under Section 139 of the Act also extends to the existence of a legally enforceable debt or liability, it would be difficult to hold that the person concerned would not be entitled to receive back his money simply because he had given the advance in cash and there was no receipt to prove the same. All this would require consideration. In view of this, leave granted in both the applications. Admit. Call for Record and Proceeding. Action under Section 390 of Code of Criminal Procedure, 1908. (R. C. CHAVAN, J.)