A transaction not reflected in the books of accounts/ITR of the holder of the cheque can be permitted to be enforced by instituting proceedings u/s 138 of Negotiable Instruments Act, 1881 and violation of Section 269SS/271AAD of Income Tax Act, 1961 would not render the transaction unenforceable u/s 138 – Prakash Madhukarrao Desai Vs. Dattatraya Sheshrao Desai – Bombay High Court

In this important judgment, Hon’ble Division Bench of High Court of Bombay held that: (i) A transaction not reflected in the books of accounts and/or Income Tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under Section 138 of the Act of 1881 in view of the presumption under Section 139 of the Act of 1881 that such cheque was issued by the drawer for the discharge of any debt or other liability, execution of the cheque being admitted. (ii) Violation of Sections 269SS and/or Section 271AAD of the Act of 1961 would not render the transaction unenforceable under Section 138 of the Act of 1881. (iii) The decisions in Krishna P. Morajkar Versus Joe Ferrao & Another (2013), Bipin Mathurdas Thakkar Versus Samir & Another (2015) and Pushpa Sanchalal Kothari Versus Aarti Uttam Chavan (2021) lay down the correct position and are thus affirmed. (iv) The decision in Sanjay Mishra Versus Kanishka Kapoor @ Nikki & Another (2009) with utmost respect stands overruled.

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