TMI Blog2015 (3) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... - would obtain a "friendly" loan from the seller of the property - who is a stranger. The entire sale consideration was paid at the time of execution of the sale deed. When such a large amount of ₹ 1,72,26,000/- flowed from the account of the accused and his wife, it does not make sense for the accused to obtain a loan of ₹ 12 lacs from the complainant. Even if one were to imagine that the accused was short of ₹ 12 lacs, and the complainant was willing to accommodate the accused, the sale deed would have recorded that the balance amount of ₹ 12 lacs would be payable after sometime. The averment of the petitioner in the complaint is bald and devoid of any particulars as to how the legally recoverable debt had arisen. The respondent having raised a probable defence, the presumption against the respondent stood dislodged. It is well settled that the Court would not grant leave to appeal, where neither material evidence and circumstances have been ignored, nor inconsequential circumstance have been given prominence more than what is required. The Court would not grant leave to appeal where the conclusion drawn is not found to be so illogical that no person wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed examined himself under Section 315 Cr PC as DW-1. The defence of the accused was that he met Mr. Manoj Aggarwal of the petitioner company through one Sh. Kushalappa in the month of September 2009, who apprised him about some property of the complainant company in village Sahalpur and enquired if the accused was interested in purchasing the same. DW-1 deposed that some talks qua the same commenced with Manoj Aggarwal, and after negotiations, an agreement was arrived at. A written agreement was also got typed through a counsel. However, at the last moment, the complainant refused to execute the same. The complainant agreed to get the NOC from the concerned department in respect of the property while asking the accused to give a signed blank cheque of ₹ 12 lacs. The accused claimed that the cheque in question was, accordingly, given to Manoj Aggarwal to book the deal. 5. He further deposed that Manoj Aggarwal applied for NOC with the concerned department and got the same. DW-1 stated that the entire deal was concluded in the office of the advocate of the complainant, Sh. Ratan Kumar Singh. The conveyance deed for transfer of title was signed by the parties, i.e. the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had no other transaction with him, nor he knew him prior to the transaction in question. The cheque in question was given as a security cheque, and had been misused by the complainant. The accused also exhibited bank statement of Bank of Baroda and ING Vysya Bank as Ex. DW1/X and DW1/Y respectively. 9. The learned MM acquitted the accused by giving the following reasoning in the impugned judgment: 24. A perusal of the complaint and affidavit of complainant Ex. CW1/A reveals that complainant has nowhere stated the liability against which the cheque in question was issued by the accused. Complainant simply states that the cheque in question was issued towards discharge of liability. However, what was that liability towards which accused had issued cheque in question has not been stated by the complainant. The complaint as well as affidavit of CW1 is completely silent on the aforesaid aspect. It is only in the legal notice Ex. CW1/9 that a slight reference has been made to some friendly loan taken by the accused. However, even the legal notice Ex. CW1/9 fails to disclose the details of the loan viz. the date when the loan was taken, the purpose for which the loan was tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion can be said to be a meagre amount. 27. While complainant has failed to establish liability of accused on record, accused has established his defence to the effect that he had entered into a property transaction with the complainant qua which the cheque in question was given as security to the complainant. The fact that there was a property transaction between the parties and that accused had come in contact with the complainant qua this property transaction alone has been admitted by CW1 in his crossexamination. Further, accused has also brought on record documents Ex. DW1/1 and Mark-A to Mark-D which squarely establish the defence of the accused. The reply of the accused Ex. CW1/X1 to the legal notice of the complainant also lends credence to the defence of the accused. From the evidence brought forth on record by the accused, he has been able to rebut the presumption under Section 118 (a) and Section 139 of Negotiable Instruments Act and establish that the cheque in question was issued as a security cheque in favour of the complainant. Complainant, on the other hand has failed to establish that the cheque in question was issued by the accused towards discharge of liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to the land. 12. Learned counsel for the petitioner next submits that the sale deed was executed on 26.10.2009 and the cheque in question was issued on 30.10.2009. The same was deposited for the first time on 04.11.2009 when it was returned on account of stop payment instructions. It was thereafter re- presented during the period of its validity in April 2010. It is argued that after the execution of the sale deed on 26.10.2009, there was no reason for the accused to issue the cheque, if a loan had not been taken from the petitioner. 13. It is pertinent to note that the accused had issued the stop payment instructions on 28.10.2009, i.e. two days before the date that the cheque bears. This makes the version of the accused probable that the cheque had been given in blank - qua the date, as a security for conclusion of the sale transaction of the aforesaid land. It is not in dispute that the petitioner received the entire sale consideration of ₹ 1,72,26,000/- from the accused. Pertinently, in the complaint as well as in the pre-summoning evidence/examination-in-chief, the petitioner does not disclose as to on what account the legally payable debt to the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan was taken, why he did not write a letter to the complainant for return of the cheque. 17. Before proceeding further, I may also take note of the fact that along with the present leave petition, the petitioner has also filed an application to seek condonation of delay of 205 days in filing the leave petition by invoking Section 5 of the Limitation Act. The explanation given by the petitioner is that the certified copy of the impugned judgment was applied for on 16.07.2013, which was prepared and supplied on 25.07.2013 and the copy was forwarded to the complainant for giving instructions. That in the second week of October 2013, the petitioner instructed the counsel to challenge the impugned judgment. The father of the counsel is a heart patient, and had earlier undergone open heart surgery, and on 22.11.2013 he suffered a massive heart failure and multi organ failure. He was admitted in CCU on 23.11.2013 and was shifted to Medanta Heart Institute, Gurgaon on 03.12.2013. He remained in Medanta till 12.12.2013 and was discharged only on 12.12.2013. Even thereafter, the father of the counsel has been developing serious complications and required regular care. Consequently, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in ss. 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of s. 5 was in clear and specific terms excluded, s. 29, sub-s. (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in ss. 4 to 24, which would include s. 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-s. (2), cl. (b) of the Indian Limitation Act. 1908 specifically excluded the applicability of s. 5, while s. 29, sub-s. (2) of the Limitation Act, 1963 in clear and unambiguous terms provides for the applicability of s. 5 and the ratio of the decision in Kaushalya Rani's case(1) can, therefore, have no application in cases governed by the Limitation' Act, 1963, since that decision proceeded on the hypothesis that the applicability of s. 5 was excluded by reason of s. 29(2) (b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963 s. 5 is specifically made applicable by s. 29. sub-s. (2), it can be availed of for the purpose of extendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of learned counsel for the respondent is that the Schedule of the Limitation Act under Entry No.114 prescribes the limitation period in respect of an application to seek leave to appeal from an order of acquittal under sub section (1) and (2) of Section 417 of Cr PC, 1898 as 90 days and under sub section (3) of Section 417 as 30 days. However, there is no similar entry found in the schedule to the Limitation Act qua the filing of leave petition under Section 478 Cr PC, 1973. He, therefore, submits that the said decision would have no applicability in the facts of the present case. 22. A perusal of the judgment of the Supreme Court in Mangu Ram (supra) would show that the foundation of the judgment of the Supreme Court is not premised on the entry contained in the schedule to the Limitation Act at serial no.114. The same is premised on a reading of Section 29(2) of the Limitation Act. The Supreme Court concluded that since there is no express exclusion of application of Section 5 of the Limitation Act qua leave petition under Section 417 of Cr PC, 1898, the said provision would be applicable to a leave petition to seek condonation of delay. Consequently, I am incline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly in the legal notice that it was claimed for the first time that a friendly loan of ₹ 12 lacs had been advanced to the accused by the respondent. No details with regard to the same had been furnished; no receipt had been produced; it was not disclosed as to how the said loan was disbursed; when it was disbursed; to whom it was disbursed, and; where it was disbursed. He submits that the accused was a stranger to the petitioner and its director. Admittedly, the director of the petitioner had met the accused only on 26.10.2009 at the time of execution of the sale deed. He submits that it is highly improbable that such a large amount of friendly loan would be advanced to a stranger by the director and his company without any documentation. He submits that the story of a friendly loan was not pursued by the petitioner either in the complaint or in its evidence. Even though it was claimed that the said liability is reflected in the audited balance sheet of the petitioner company, the same was not produced. 26. Mr. Mittal submits that since the cheque given as security to book the deal in respect of the land was not returned on 26.10.2009 when the sale deed was executed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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