TMI Blog2018 (11) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Crl.R.C.No.474 of 2016 - - - Dated:- 9-10-2018 - Mr. Justice M.V. Muralidaran For the Petitioner : Mr.N.R.Elango, Senior Counsel for Mr.N.Ramesh For the Respondent : Mr.M.L.Joseph for M/s.Chennai Law Associates ORDER This Criminal Revision Case has been filed by the petitioner challenging the order dated 9.2.2016 passed in Criminal Appeal No.2 of 2013 by the learned VI Additional Sessions Judge, Chennai. 2. The facts in a nutshell are as under: The petitioner is the accused and the respondent is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d misused and filed a false complaint against the petitioner. 9. He further contended that the complaint was filed by the respondent with three days delay and there was no proper explanation for the said delay, but the trial Court condoned the delay stating that the limitation point was not challenged. 10. He also contended that as per Section 118 and 139 of the Negotiable Instruments Act the standard of proof is not by proof beyond reasonable doubt, and inasmuch as the petitioner had adduced sufficient oral and documentary evidence to rebut the case of the respondent, the Courts below failed to consider the same, more particularly, when the respondent had not proved the legal liability under the cheque. 11. He further contended that when the claim made by the respondent is relating to the liability in a company and/or partnership firm, the petitioner should have issued the cheques from the company and/or partnership firm and the fact that the cheques in question were from the personal account of the petitioner itself shows that the version of the respondent is unbelievable, more so when the same were issued after years of resignation of the complainant. 12. Per contra, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of which it derived satisfaction to condone the delay in filing the complaint. 18. The satisfaction contemplated by the proviso is not an empty formality but requires an application of mind spelling out the need to direct the condonation of delay. The material on record has to be scanned, assessed and analyzed so as to find out whether the complainant has, or has not, a sufficient cause for not knocking at the portals of the Court within the period stipulated under section 142 Negotiable Instruments Act, which has not been done in the instant case. Therefore, it can be said in unambiguous terms that the learned Magistrate has failed to pass the order in consonance with the mandate of the proviso added to Section 142 of Negotiable Instruments Act. Admittedly, in this case, the complaint has been taken on file straightway, though there was a delay of three days in filing the complaint without following the procedure prescribed under Section 142(b) of the Negotiable Instruments Act. 19. When an application for condonation of delay is filed, notice obviously will have to be issued to the other side before the order is passed either allowing the application or declini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- to the respondent. Therefore, the plea of the petitioner that there was a practice of keeping blank signed cheques available in the office cannot be lightly disregarded. While accepting the formal parlance followed, the Appellate Court held that if that is the formal parlance followed, it gives an inference as to the necessity of issuing signed personal cheques to the complainant, for the purpose of paying the firm's transportation charges, that too after the resignation of the complainant . This Court is unable to accept the said reasoning given by the Appellate Court. The plea of the petitioner that the complainant had due access to the signed blank cheques is not rebutted by the respondent complainant at any stage of the proceedings. 23. Even though as per Section 139 of the Negotiable Instruments Act, once a cheque is dishonoured, the burden shifts on to the accused to disprove that he does not owe the debt or liability, it cannot be denied that the initial and basic task of asserting the bare facts under which the liability to make payment of the cheque arose is upon the complainant as laid down by the Hon'ble Supreme Court in the case of M.S. Narayana M ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
