2020 (1) TMI 1646 - HC - Indian Laws

Condonation of delay of 634 days in filing the application seeking leave to appeal - Section 5 of the Limitation Act - HELD THAT - Keeping in view the fact that the applicant had been wrongly pursuing the appeal before the learned Sessions Judge, the present application is allowed and the delay of 634 days in filing the application seeking leave to appeal, Is condoned. Dishonor of Cheque - Legally enforceable debt or not - Preponderance of probabilities - learned Magistrate has taken a reasonable and probable view on appreciation of evidence - HELD THAT - As per the conclusion drawn by the learned Magistrate, the complainant could not prove on record that the cheques in dispute had been issued by the accused to him in discharge of a legally enforceable debt and the accused had also denied the execution of agreement dated 15.04.2008. The complainant himself admitted that the cheques in question had been given by the accused to him for the sake of safe dealing. It is true that if the cheques are used for a certain contract/agreement and not towards discharge of any debt or any other liability, the offence under Section 138 N.I. Act, is not attracted. The case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic exposures and experiences and, thus, it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature - it would not be unjustified and completely misplaced to say that the complainant has miserably failed to prove if the impugned cheques had been issued against the discharge of any legally enforceable debt or liability. Preponderance of probabilities lies completely in favour of the accused. There are no ground to grant special leave to file appeal - application dismissed.

Summary

Issues:
1. Application under Section 5 of the Limitation Act for condonation of delay in filing the application seeking leave to appeal.
2. Special leave to appeal against the judgment of acquittal under section 138 of the Negotiable Instruments Act, 1881.

Issue 1:
The applicant sought condonation of a 634-day delay in filing an application seeking leave to appeal, attributing the delay to filing the appeal before the wrong forum. The complaint was initially dismissed, and an appeal was filed within the limitation period but was subsequently dismissed for being not maintainable. The High Court allowed the application, condoning the delay in light of the applicant's mistaken pursuit of the appeal before the wrong forum.

Issue 2:
Special leave to appeal was sought against the judgment of acquittal by the Judicial Magistrate, dismissing the complaint under section 138 of the Negotiable Instruments Act, pertaining to dishonored cheques. The trial Magistrate dismissed the complaint citing various reasons, including discrepancies in witness testimonies, failure to prove the cheques were issued for a legally enforceable debt, and the accused's denial of executing the relevant agreement. The Magistrate's decision was based on a reasonable and probable view of the evidence, concluding that the complainant failed to establish a legally enforceable debt or liability, essential for invoking Section 138 of the Act.

The High Court upheld the Magistrate's decision, emphasizing the importance of unimpeachable evidence in criminal cases. It noted fatal infirmities in the complainant's case, highlighting the lack of proof regarding the purpose of the cheques and the absence of a legally enforceable debt. The Court found no substantive error or perversity in the Magistrate's reasoning, ultimately dismissing the application for special leave to appeal due to the complainant's failure to establish a case that could withstand legal scrutiny.