9911796707
TMI Blog2018 (11) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent initially started "Integrated Consultants and Foundation Engineers" on 19.10.1988 with equal shares. Thereafter, the same parties agreed to start a limited company and, accordingly, formed a limited company in the name and style of "Integrated Pile Foundations (Madras) Pvt. Ltd." on 1.10.1991. 3. Disputes arose between the parties and ultimately, the respondent submitted his resignation. It is stated that the said resignation was forwarded to the Registrar of Companies on 15.11.2001. The respondent complainant asked for settlement as well as materials that he brought in while floating the company, which he valued in all at Rs. 60,00,000/- in the year 2000. 4. It is stated that in response to the same the petitioner issued two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner, which he had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Rs. 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. 16. Only if the petitioner had been issued a notice before condonation, he would have rebutted. The finding of the Appellate Court that "if the accused really suffered due to condonation of delay made, he would have preferred revision, but instead he allowed the trial to go ahead by submitting to it and now, at this stage he cannot take up a technical plea t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 declining the same. Undoubtedly, a right accrues in favour of the accused when there is a delay in lodging the complaint, but in the case on hand, the petitioner lost such valuable right. It it true that it is only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused, who cannot be shut out from such proceedings. Though the accused is out of picture till the complaint is taken cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly took the stand that the signature of the accused in the cheque is not disputed by D.W.2. In fact, nothing has been stated by the respondent complainant with regard to his signature on the blank cheque. So necessarily a presumption can also be drawn to the effect that the practice of keeping blank signed cheques was prevalent. 22. That apart, there is no basis for arriving at a finding that the petitioner is due a sum of Rs. 40,00,000/- 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 infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantive evidence. If such allegations exist then of course, the rebuttable burden would shift on to the accused to disprove existence of the liability. In the case at hand, all that was mentioned in the complaint was that the accused and the complainant had been partners and the complainant is entitled to equal share and that the disputed cheques were advanced for the repayment thereof. The accused denied his liability towards the disputed cheques. 25. In M.S. Narayana Menon case, supra, the Hon'ble Supreme Court has clearly expounded that when the accused denies the existence of liability even by a preponderance of probability, the burden of proving the facts essential to unfurl the necessary ingredients of the offence under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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