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2018 (11) TMI 1095 - HC - Indian LawsDishonor of Cheque - Section 138 of NI Act - the pivotal contention of the petitioner is that the respondent, being a partner and co-director, had access to all documents, including signed cheques of the petitioner, which he had misused and filed a false complaint against the petitioner. Held that:- Admittedly, in the case on hand, legal notice was issued by the complainant on 13.1.2004 and he had sent his reply on 29.1.2004. Thereafter, the respondent complainant filed a private complaint on 4.3.2004. There is a delay of three days. In the order of the Appellate Court, it has been categorically stated that the complainant had filed the complaint with delay and the same has been condoned by the trial court stating that the delay is well explained and bona fide on oral examination made on oath. It is clear that such condonation of delay was done by the trial Court without issuing any notice to the petitioner/accused. When the complainant is claiming that the petitioner is due and payable a sum to the tune of ₹ 60 Lakhs, it is not known as to how he was not diligent in filing the private complaint within the statutory period. That apart, no explanation whatsoever has been adduced by the respondent complainant for the delay. Unless and until the basis of existence of liability is set out by the complainant in the complaint and in the evidence, the Court would be loathe to raise a presumption regarding existence of a legally enforceable debt against the accused. A bald allegation that the accused who advanced the cheque was under an obligation to honour the same is unacceptable. The revision is allowed setting aside the order dated 9.2.2016 passed in Criminal Appeal No.2 of 2013 by the learned VI Additional Sessions Judge, Chennai.
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