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TMI Blog2018 (12) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... r grant of such leave. 2. The petitioner has duly complied with the deposit condition as directed. During the course of arguments the learned counsel for the petitioner has alleged the averments made in the plaint are highly improbable since the respondent was never the chartered accountant of the petitioner herein and in fact the chartered accountants of petitioner was a partnership firm viz. M/s.Moitra Duggal and Associates, of which the respondent was one of its partners. It is the case of the petitioner that the cheque in question was never issued to the respondent qua any alleged professional fee and even otherwise, a chartered accountant could never have raised a bill of such an astronomical amount of Rs. 76.00 Lac qua any alleged pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount as professional fee, even otherwise, amount to professional misconduct. 5. On the other hand, the learned counsel for the respondent has raised three issues viz.; a) petition under Article 227 of the Constitution is not maintainable; b) the leave to defend application was not filed after the service of the summons for judgment but prior to it; and c) the admissions made by the petitioner in complaint case under Section 138 Negotiable Instruments Act, 1881 (NI Act) lodged by respondent against petitioner shall go against her. 6. In support of his first contention, the learned counsel for the respondent has referred to a decision in Spicejet Limited vs Arun Kumar CM (M) No.1269/2017 decided on 10.11.2017 wherein this Court has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 for the next date viz. 04.08.2018 but however, the leave to defend application was filed in May 2018 i.e. prior to service of the application for Summons for Judgment upon the petitioner herein. I do not think it is a big issue since the application for leave to defend, if was filed prior in time, can very well be adopted later on issuance for summons for judgment, which in fact has also been done in this case. 8. Coming to contention c) the learned counsel for the respondent has taken me through the legal notice dated 16.06.2015 issued by the respondent to the petitioner under Section 138 NI Act on dishonor of the cheque wherein the respondent had categorically averred the dealings between the petitioner and the respondent and also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Duggal viz., the respondent herein. 10. The petitioner appears to be an educated lady. As a prudent person she is not supposed to hand over signed blank papers/promissory notes /blank signed cheques to any one unless she owe money to such person hence it has been rightly held by the learned Trial Court that the defence of the petitioner appears to be highly improbable. Even as per Section 91/92 of the Indian Evidence Act, 1872 no contrary oral version is admissible unless fraud and misrepresentation is alleged, which is missing in this case as petitioner had failed to lodge any complaint to the police. The learned Trial Court also notes section 118 NI Act raises a presumption of existence of a consideration for issuance of cheque and he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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