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2019 (5) TMI 1612 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - section 138 of NI Act - whether the defence raised by the appellant is bonafide and probable; has the appellant been able to raise a triable issue or whether the defence of the appellant is moonshine, sham, bogus and malafide? HELD THAT:- A reading of the leave to defend application, more particularly, paragraph 6, which has been extracted by the learned Single Judge in detail, would show that the appellant had consistently taken a stand that he would be taking action against the respondent for the illegal acts committed but no such action has been initiated. The signatures on the agreement are not disputed. Handing over of cheques and part payments made during this period are clearly indicative of the acknowledgement of debt and liability by the appellant. Another factor which cannot be ignored is that to clear the debt, the appellant had also sought permission of the respondent to involve overseas investors, which was obviously an act by the appellant to clear his debt. In response to the stand taken by the respondent that no criminal complaint had been filed, counsel for the appellant submits that he had filed a petition under Section 482 Cr.P.C. for quashing of the proceedings under Section 138 of the Negotiable Instruments Act. He submits that he had agitated this question before the learned Single Judge of this Court and the Court granted liberty to raise the grounds before the concerned court. The learned Single Judge has rightly dismissed the application of the appellant seeking leave to defend - appeal dismissed.
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