THE INSTANT MATTER IS QUITE INTERESTING INDEED ! THE ORIGINAL PLAINTIFF - RESPONDENT PLACED HIS RELIANCE UPON HIS PERSONAL BOOKS OF ACCOUNT MAY BE REGULARLY MAINTAINED BY HIM IN HIS DAY TO DAY BUSINESS TRANSACTION & CONTENDED TO HAVE BEEN DULY SIGNED BY THE ORIGINAL DEFENDANT - APPELLANT FIRSTLY ON DATED 17 - 11 - 2001 PERTAINING TO BUSINESS TRANSACTION BY & BETWEEN THE PARTIES SECONDLY IN THE YEAR 2002 PERTAINING TO HAND LOAN TRANSACTION OF RUPEES 97,000/- IN QUESTION BORROWED BY THE DEFENDANT - APPELLANT FROM THE PLAINTIFF - RESPONDENT AND MAY BE DULY SIGNED BY THE DEFENDANT - APPELLANT. WHEREAS THE FIRST TRANSACTION OF AMOUNT ? DATED 17-11-2001 IS UNDISPUTED. THE BUSINESS DEALING AT THE RELEVANT TIME BY & BETWEEN THE PARTIES IS UNDISPUTED. MOST PERTINENTLY THE HAND LOAN TRANSACTION OF AMOUNT OF RUPEES 97000/- IN QUESTION IS DISPUTED AND SPECIFICALLY DENIED BY THE DEFENDANT - APPELLANT ALSO THE SIGNATURE PERTAINING TO THE HAND LOAN TRANSACTION IN QUESTION IS ALSO DISPUTED & SPECIFICALLY DENIED BY THE DEFENDANT - APPELLANT. APPARENTLY THE PLAINTIFF - RESPONDENT HAS PROVED THE SUIT VIDEPRIMARY EVIDENCE AS REQUISITE UNDER SECTION (61) & SECTION (62) OF THE INDIAN EVIDENCE ACT 1872. FURTHER APPARENTLY THE PLAINTIFF - RESPONDENT HAS CORROBORATED THE DISPUTED HAND LOAN TRANSACTION BY DIRECT ORAL EVIDENCE AS REQUISITE UNDER SECTION (59) & (60) OF THE I. E. ACT 1872. ON THE CONTRARY THE DEFENDANT - APPELLANT DID NOT STEP INTO THE WITNESS BOX TO DISPROVE THE CASE OF PLAINTIFF - APPELLANT WHICH IS CERTAINLY A MINUS POINT IN HIS FAVOR. IT CAN BE INFERRED FROM THE PERUSAL OF THE JUDGMENT MOST PERTINENTLY THAT THE DEFENDANT - APPELLANT COULDNT ELUCIDATE ANY THING FROM THE MOUTH OF THE WITNESSES, THROUGH THE ACID TEST OF CROSS EXAMINATION . IN THE MATTER OF SANJAY MISHRA VERSUS JANISHKA KAPOOR @ NIKKI THE BOMBAY HIGH COURT RULED VIDE ITS JUDGMENT DATED 24-2-2009 IN CRIMINAL APPEAL NO 4694 OF 2008 SPECIFICALLY THAT, THE LIABILITY TO PAY AN UNACCOUNTED CASH AMOUNT IS NOT LEGALLY ENFORCEABLE DEBT THUS AS A MATTER OF FACT THE QUESTIONS THAT COMES TO LAWYERS MIND IS THAT, FIRSTLY WHETHER HE IS A REGULAR INCOME TAX PAYEE CITIZEN & FILE INCOME TAX RETURNS REGULARLY EACH FINANCIAL YEAR WITHOUT FAIL? SECONDLY WHETHER THE PLAINTIFF - RESPONDENT HAS FILED HIS INCOME TAX RETURN IN THE FINANCIAL YEAR 2002 ? WHETHER PLAINTIFF - RESPONDENT HAS DISCLOSE THE INFORMATION OF DISPUTED HAND LOAN TRANSACTION OF AMOUNT OF RUPEES 97000/- IN HIS INCOME TAX RETURN AT THE RELEVANT FINANCIAL YEAR 2002 ? WHETHER THE DISPUTED HAND LOAN TRANSACTION AMOUNT OF RUPEES 97000/- IS AN UNACCOUNTED CASH AMOUNT & IS NOT LEGALLY ENFORCEABLE DEBT?. SECONDLY THE HONORABLE SUPREME COURT HELD IN THE MATTER OF KRISHNA JANARDHAN BHAT VERSUS DATTATRAYA G. HEDGE SPECIFICALLY THAT, THE PROVISIONS OF SECTION 271 D OF THE INCOME TAX ACT 1961 CONTEMPLATES THAT, if a person takes or accepts any loan or deposit in contravention of the provisions of section 269 -SS he shall be liable to pay by way of penalty a sum equal to the amount of the loan or deposit so taken or accepted and the said penalty shall be imposed by the joint commissioner of the income tax !! IT IS HELD THAT, the entries in the books account if duly maintained and are corroborated through evidence same are admissible under section (34) of the I. E. ACT 1872. CERTAINLY IT IS UNDISPUTED THAT THE SAID EVIDENCE IS ADMISSIBLE IN EVIDENCE BUT THE SECTION (34) CONTEMPLATES SPECIFICALLY THAT, BUT SUCH STATEMENT SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY . ITS TRUE THAT TO PREFER SECOND APPEAL UNDER SECTION (100) OF CPCOUGHT TO INVOLVE AT LEAST ONE SUBSTANTIAL QUESTION OF LAW. ONCE AGAIN THE QUESTIONS COMES TO LAWYERS MIND IS THAT, GIVEN THAT THE PLAINTIFF - RESPONDENT HAS NO MONEY LENDING LICENCE WHETHER HE IS LEGALLY ENTITLED TO RECOVER THE UNACCOUNTED - OR - ACCOUNTED HAND LOAN AMOUNT WITH INTEREST IS A SUBSTANTIAL QUESTION OF LAW? WHETHER THE UNACCOUNTED HAND LOAN AMOUNT OF RUPEES 97000/- ALONG WITH INTEREST IS ILLEGALLY ENFORCEABLE DEBT BY THE PLAINTIFF - RESPONDENT AGAINST THE DEFENDANT - APPELLANT IS A SUBSTANTIAL QUESTION OF LAW ? WHETHER THE SECOND APPEAL UNDER SECTION (100) OF CPC IS MAINTAINABLE ? IT IS MANIFEST THAT, THE PLAINTIFF - RESPONDENT HAS CORROBORATED THE EVIDENCE OF ACCOUNT BOOK BEARING SIGNATURE OF THE DEFENDANT - APPELLANT BY ADDUCING THE EVIDENCE OF HAND WRITING & FINGER PRINTS EXPERT AS A WITNESS BESIDES OTHER WITNESSES. FURTHER THE PERUSAL OF THE JUDGMENT DELIVERED BY HONORABLE PUNJAB & HARYANA HIGH COURT & THE STRICTURES PASSED IN IT REVEALS MOST PERTINENTLY THAT, THE PLAINTIFF - RESPONDENT HAS CONTESTED HIS CASE VERY WELL & ON THE CONTRARY THE DEFENDANT - APPELLANT HAS FAILED TO CONTEST HIS CASE ON THE BASIS OF SOUND LEGAL FOOTINGS ! BASED ON THE CORRECT APPRECIATION OF THE EVIDENCE ON RECORD & LAW ON THE POINT THE PLAINTIFF - RESPONDENT SUIT SUFFERS FROM NO ILLEGALITY OR PERVERSITY AND WARRANT NO INTERFERENCE BY THE HONORABLE HIGH COURT. THUS HIS LORDSHIP WAS UPHELD THE JUDGMENT & DECREE PASSED BY THE COURT OF FIRST INSTANCE TOWARDS THE END OF JUSTICE!............. ADV.ER.JR PERVAIZLAYMAN
Posted on: Tue, 09 Sep 2014 16:16:56 +0000
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