Accused in cheque bounce case cannot take benefit if complainant has not shown the transaction in Income-Tax returns

Now it has been harped upon by the accused that the said transaction has not been accounted for. In other words, complainant has not shown the said transaction in her Income-Tax returns. Learned Advocate for the respondent as well as learned Trial Court have heavily relied on the decision in Sanjay Mishra (supra). However, it appears that the legal position that had developed thereafter was not pointed out to learned Trial Judge. In Bipin Thakkar (supra) entire legal position on this point has been discussed. In fact, Bipin Thakkar (supra) reiterates the law discussed on the point in Krishna P. Morajkar vs. Joe Ferrao and another [2013 ALL MR (Cri) 4129 : (2013) 5 AIR Bom R 294]. It is necessary to reproduce those observations from Krishna's case, which reads thus :-

"Further, it has been observed that there is no provision in Income-Tax Act, which makes an amount not shown in the income- tax returns unrecoverable. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under Income-Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income-Tax Act."[Para No.12]

    Thus, when in a subsequent pronouncements this Court has clarified the legal position that too, after taking note of subsequent pronouncement by Hon'ble Supreme Court,

then the later decision would prevail. It has been then observed in Bipin Thakkars' case that, "It is true that merely because amount advanced is not shown in Income-Tax return, in every case, one cannot jump to the conclusion that the presumption under Section 139 of said Act stands rebutted". We can consider the decision in the case of Assistant Director of Inspection vs. A. B. Shanthi, (2002) 6 SCC 259, wherein it has been held :-

"The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so-called lender also to manipulate his records later to suit the plea of the tax-payer. The main object of S. 269-SS was to curb this menace."[Para No.13]

Investigation and filling of chargesheet under The Immoral Traffic (Prevention) Act, 1956 should be done only by Special Police Officer empowered under Section 13 of the Act

Learned counsel also took my attention to Joseph v. State of Kerala [2011 (2) KHC 958]. In that decision, while dealing with Sections 3, 4, 5, 14 (ii) of the Act, it has been held that authorisation given by the Special Police Officer to his subordinate officer must mention the name of any of the persons to be arrested. It is also held that Special Police Officer cannot authorise investigation of the case to be conducted by any other officer. In paragraph No.4 of the said judgment, the ambit and scope of Section 13 has been dealt with, which is relevant in this context to be extracted and it reads as follows:

"4. There is also yet another aspect that is required to be looked into. Under S.13 of the Act, a Special Police Officer shall be appointed 'for dealing with the offences under this Act in that area'. 'Dealing with the case' means doing everything connected with the progress of the case. The Supreme Court in the decision referred supra considered that question and held that the expression would include detection, prevention and investigation of offences and other duties which have been specifically imposed on the Special Police Officer under the Act. It is seen from the records that investigation of the case was conducted by the Circle Inspector though, as authorised by the Special Police Officer and the role of the Special Police Officer was only to verify the investigation and submit final report. S.14(ii) of the Act does not empower the Special  

Police Officer to authorise investigation of the case to be conducted by any other officer. If that be so the investigation conducted by the officer other than the Special Police Officer is against the provisions of law."[Para No.8]