Complaint under section 138 can not be dismissed on the ground that the loan transaction has not been shown in Income Tax papers or the payment of loan was not made by cheque.
"So, in my opinion, it cannot be said that merely because the amount advanced was not paid in accordance with the provisions of Section 269-SS of Income Tax Act, will make the proceeding under Section 138 of the N.I. Act bad in law.
In the fact of the case, the Income Tax return or a compliance of provision of Section 269-SS will not come in the way of filing compliant by the petitioner against the respondent No. 2.
Similar issue was dealt upon by Hon'ble Karnataka High Court in C.N. Dinesha vs. C.G. Mallika, in Criminal Revision Petition No. 536 of 2014 decided on 06.04.2017 and by Hon'ble Bombay High Court in Bipin Mathurdas Thakkar vs. Samir @ Sameer Dessai & anr. in Criminal Revision Application No. 53 of 2014 decided on 05.02.2015.
In regard to application of Section 269-SS of Income Tax Act in deciding the dispute under Section 138 of the Negotiable Instruments Act was also considered by this Court in Dipak Kumar Das Vs Dilip Kumar Das in Crl. Rev. P No. 57 of 2010 decided on 05.02.2016 wherein this Court has discarded the applicability of this provision and upheld the judgment and conviction of the accused."
See para 30 of Subal Chandra Ghosh vs. The State of Tripura and Ors. (25.04.2019 - Tripura) : MANU/TR/0104/2019