1 APPLN-5016.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.5016 OF 2010 Ghanshyam Mohanlal Parmar .... Applicant Vs. The State of Maharashtra & Anr. .... Respondent Shri Jaydev Trivedi for the Applicant. Ms U.V. Kejariwal, APP, for the State. Ms Indrayani Koparkar for Respondent No.2. CORAM: R.C. CHAVAN, J. DATED: JULY 22, 2011 P.C: This is an application for leave to file appeal against acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act recorded by learned Metropolitan Magistrate, 64 th Court, Andheri, Mumbai, relying on the observations of the Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, reported in 2008 All MR (Cri.) 1164 (SC), which was followed by this Court in the case of Sanjay Mishra v. Kanishka Kapoor @ Nikki & Anr., reported in 2009 (5) Bom.C.R. 464. The observations in Krishna Janardhan Bhat (supra) or Sanjay Mishra s case (supra) would only give rise to a factual conclusion that a person may not have advanced 2 APPLN-5016.10 huge sums of money without reporting them to the income tax authorities, as required under Section 269SS of the Income Tax Act. All the same, it attracts penalty under Section 271D of the Income Tax Act. However, there cannot be any proposition of law that merely because such advances have not been reported to the income tax authorities, they become irrecoverable. The income tax authorities may recover penalties because of breach committed by the person advancing money. In view of the judgment of a Three Judge Bench of the Supreme Court in Rangappa v. Mohan, reported in 2010 Cri.L.J. 2871, which overrules the conclusion in Krishna Janardhan Bhat s case that there is no presumption under Section 139 of the Negotiable Instruments Act that the cheque was given for a legally recoverable debt or liability, the cheque would have to be presumed to have been given for such a legally recoverable debt or liability and therefore it would be for the defence to rebut the presumption. Hence leave granted. Appeal admitted. Since the respondent is already represented by an Advocate, action under Section 390 of Cr.P.C. is not necessary. The application accordingly stands disposed of. (R.C. CHAVAN, J.)