TMI Blog2023 (8) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... ndonation of delay is discretionary and is to be liberally construed. No doubt, delay is fatal to the case of any party but as far as possible the matter should be heard and decided on merits. In the instant case, there is a delay of 34 days, which should be condoned in order to decide the present case on merits - Secondly, it has been held by the learned Sessions Court that the defences raised by the petitioner that the respondent had never advanced any friendly loan and he did not have any financial capacity to lend any such huge amount of loan and that advancing of friendly loan is not accounted in the business of account and income tax returns are such defences which can only be decided once the parties lead their respective evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi District, Patiala House Court, New Delhi passed in the CC NI Act no. 2461/2022 titled as Mukesh Kumar Bharti Vs. Piyush Kumar Pappu , and consequently dismiss the complaint bearing CC NI Act no. 2461/2022 titled as Mukesh Kumar Bharti Vs. Piyush Kumar Pappu , and/or c) Pass such further direction(s) and other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice. 2. It is submitted by the learned Counsel for the petitioner that learned Sessions Court erred in recognising that the learned MM committed gross illegality in taking the cognizance of the offence under Section 138 of the Negotiable Instruments Act and in summoning the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the Ld. Sessions Court erred to consider that the Ld. MM in issuing summoning order dated 19.07.2022 against the Petitioner/ Accused has wrongly presumed that the cheque issued is in discharge of liability towards the friendly loan of Rs. 38,76,000/- given in cash by the respondent/complainant to the petitioner/accused and there is no evidence placed on record to support the same to make it legally enforceable. 4. Learned counsel for the petitioner has also relied on some judgements to support his case, namely, judgment passed by the Hon'ble Apex Court in Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel reported in AIR 2022 SC 4961 wherein it was held that for the commission of an offence under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 5. In the instant case, for proper adjudication, it is necessary to look into to the orders dated 19.07.2022 and 20.03.2023 6. The relevant portion of order dated 19.07.2022 passed by the Ld. MM reads as follows: Let the accused be summoned on filing of PF and the Meta Data form within 7 days through RC-AD, Speed Post/approved Courier Services returnable on 02.12.2022. Endorsement be made to the effect that offence punishable under section 138 of the Negotiable Instruments Act, 1881 is compoundable by virtue of section 147 thereof, and should the Accused disburse/deposit the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the material and evidence brought on record by the complainant by way of preponderance of probabilities. Further, reliance upon decisions in Sanjay Mishra v Kanishka Kapoor and Ors MANU/MH/1078/2009 as well as Monica Sunit Ujjain v Sanchu M. Menor Ors in Crl. Rev. Application No. 395/2015 decided on 02.08.2022, are misplaced as the said decisions were made after a full fledged trial. In other words, the plea by the petitioner that the complainant had never advanced any friendly loan and that he did not have the financial capacity to lend such huge amount of loan and/or that advancing of friendly loan is not accounted in the business of accounts and income tax returns, are such defences which could only be established during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provisions in the course of interpretation of the expression sufficient cause . So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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