AI Drafter 
TaxTMI 
TaxTMI 
2015 (3) TMI 1321
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....in order to recover the legally recoverable dues, the complainant presented the cheque in question on the instructions of the accused with the respondents banker within the statutory period. However, the cheque was returned unpaid on the ground of stop payment instructions vide returning memo dated 23.04.2010. A legal demand notice was issued on 20.05.2010. Despite receipt of the same, the accused did not make payment. Consequently, the said complaint was preferred by the complainant. 3. Upon being summoned, the accused entered appearance on 18.09.2010, whereafter notice was framed upon the accused on 18.08.2011. The accused pleaded 'not guilty' and claimed trial. The AR of the complainant Sh. Manoj Aggarwal entered into the witness box as CW-1. He exhibited several documents in his deposition. He was cross examined by the accused and was confronted with Ex. CW1/X1 i.e. the reply dated 07.06.2010 given by the accused to the legal demand notice of the complainant. 4. The statement of the accused under Section 313 Cr PC was recorded on 01.12.2012, wherein the accused expressed his desire to lead defence evidence. The accused examined himself under Section 315 Cr PC as D....
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...., thus, he requested his bank, i.e. Bank of Baroda to stop the payment of the cheque of Rs. 12 lacs. He claimed that after about 15-20 days from 26.10.2009, he visited Jaipur and called Mr. Bitthal and Mr. Aggarwal and demanded the cheque of Rs. 12 lacs, but these persons assured the accused that he should not worry about the cheque and that due to a holiday being observed in the office, the cheque could not be returned. He further stated that during the mutation proceedings, notice was issued to the complainant by the Revenue Department, but none appeared in response to the said notice, nor any objection was raised. The certified copy of the mutation proceedings along with the notice was exhibited as Ex. DW-1/1 Colly. 8. He further stated that he responded to the legal notice by stating that the cheque in question was without consideration. He also denied that a friendly loan had been taken by the accused. He further deposed that he had meetings with the complainant only in relation to the property, and he had no other transaction with the complainant. DW-1 stated that he had met Mr. Bitthal only twice and he had no other transaction with him, nor he knew him prior to the trans....
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.... is clear that the complainant does not have any document in its possession which can establish liability of the accused to the tune of Rs. 12 lakhs towards the complainant. Though, CW1 has deposed about one audited balance sheet in his cross-examination but the same has not been produced on record by the complainant for reasons best known to them. 26. Moreover, as per CW1, the cheque in question was given by the accused to him on 26.10.2009. Now, CW1 has also deposed that accused had paid a sum of Rs. 1,72,26,000/- to the complainant qua the property transaction through cheque dated 23.10.2009 which was encashed on 04.11.2009. The fact that accused had made a payment of Rs. 1,72,26,000/- to the complainant during the same period when it is alleged that he had taken a loan from the complainant shows that accused was having a sound financial position. Thus, it is highly improbable that having such a sound financial capacity to pay a sum running in crores to the complainant, accused would take a loan of Rs. 12 lac only from the complainant, which if compared with the sale consideration can be said to be a meagre amount. 27. While complainant has failed to establish liability of....
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....nded over as taken money to book the deal in the name of my wife and an amount of Rs. 1,72,26,000/- was finally paid to the complainant at the time of execution of sale deed for purchase of property situated at village Salapur, Teh. Vasant Vihar, Delhi for which the entire payment was separately made to the complainant. Hence, I stopped the payment on the cheque which was wrongfully presented by the complainant". 11. I do not find any merit in this submission of learned counsel for the petitioner. There is no material inconsistency, or contradiction in the stand taken by the accused in the reply to the legal notice dated 07.06.2010 and the statement made before the Court on 18.08.2011. The essence of both the statements is that the cheque in question was given as a security, i.e. to book the deal in respect of the land agreed to be purchased from the complainant, and that the cheque was liable to be returned since the entire sale consideration in respect of the land had been paid. The cheque was only given as a security to ensure that the accused sticks to the agreement in relation to the land. 12. Learned counsel for the petitioner next submits that the sale deed was exec....
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....t he has the audited balance sheet reflecting the liability of the accused, the same was not tendered in evidence. 15. Learned counsel for the petitioner submits that the learned MM rendered the impugned judgment in ignorance of the judgment of the Supreme Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441, wherein the Supreme Court has held that the presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. He submits that the accused had failed to rebut the said presumption by probablising a defence. 16. He has also referred to the judgment of this Court in V.S. Yadav v. Reena, wherein this Court held that to rebut the presumption under Section 139 of the Act, a mere pleading that the cheque was issued as security would not be sufficient. He submits that the accused was obliged to lead independent evidence to rebut the presumption under Section 139 of the Act by leading cogent evidence with regard to circumstances in which the cheque had been issued. It was for the accused to prove that if no loan was taken, why he did not write a letter to the complainant for return of the cheque. 17. Before proceeding further, I....
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....oinder. Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in Mangu Ram v. Municipal Corporation of Delhi, AIR 1976 SC 105. In this decision, the Supreme Court considered the para materia provision contained in Section 417 of Cr PC, 1898. By placing reliance on Section 29(2) of the Limitation Act, 1963, the Supreme Court negated the contention that the Court could not condone the delay in filing the leave petition by resort to Section 5 of the Limitation Act beyond the period of 60 days. 20. Learned counsel for the petitioner relied upon para 7 of the said judgment, which reads as follows: "There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in s. 29, sub-s. (2) is concerned Whereas under the Indian. Limitation Act, 1908 s. 29, sub-s. (2),cl. (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than these contained in ss. 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of s. 5 was in clear and specific terms exclude....
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....to displace the applicability of s. 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, s. 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-s. (4) of s. 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-s. (4) of s. 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court". 21. To this, the submission of learned counsel for the respondent is that the Schedule of the Limitation Act under Entry No.114 prescribes t....
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....ition was not prepared and filed for over a month. The father of the counsel suffered serious ailment on 22.11.2013. Thus, even if the delay after 22.11.2013 is taken to have been sufficiently explained due to the illness of the father of the counsel and the wife of the AR, there is no explanation furnished with regard to the delay which had already taken place upto 22.11.2013. Consequently, the application seeking condonation of delay is liable to be dismissed and is, accordingly, dismissed. 24. Since the parties have advanced detailed submissions on merits, I proceed to deal with the same even though the leave petition is liable to be dismissed as being barred by limitation. Therefore, I proceed to take on record the submissions of Mr. Mittal on the merits of the petition. 25. Mr. Mittal has submitted that the respondent had been able to raise a probable defence, which has also been taken note of in the impugned judgment. He submits that the petitioner had not disclosed any particulars of the "legally recoverable debt" claimed to have arisen. It was only in the legal notice that it was claimed for the first time that a friendly loan of Rs. 12 lacs had been advanced to the a....