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TMI Blog2019 (4) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited by the petitioner with the Appellate Court as also with this Court shall be returned to the petitioner along with interest, if any accrued thereon. Petition allowed. - CRL.REV.P. 811/2015 - - - Dated:- 29-3-2019 - MR SANJEEV SACHDEVA J. Advocates who appeared in this case: For the Petitioners: Mr. Sanjeev Goyal with Mr. Nipun Gupta and Ms. Kriti Gupta, Advocates. For the Respondents: Mr. Amarjeet Rai, Advocate for respondent No.1. JUDGMENT SANJEEV SACHDEVA, J. (ORAL) Crl.M.A.9198/2017 (for condonation of delay in re-filing) 1. Petitioner seeks condonation of delay in re-filing the Revision Petition. It is contended that initially the petitioner had filed an application seeking leave to lead additional evidence, however, the same was rejected. The Revision Petition was filed within time, however, certain objections were raised by the registry. The application was taken back for re-filing and got misplaced and subsequently, when the file was traced out, the same was re-filed with delay. 2. Reply to the application has been filed. However, during submission there was no serious opposition to the condonation of delay. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction or that nothing had been supplied. The Trial Court further negated the contention of the petitioner that the respondent No.1 had actually set up two companies one in the name of the petitioner and another in the name of the respondent No.2 and the petitioner was only an employee of respondent No.1 and the transactions were done by the respondent No.1 in the names of the petitioner and the respondent No.2. 7. The Appellate Court further rejected the contentions of the petitioner that the cheque has not been issued against any legal liability. 8. Learned counsel for the petitioner submits that the respondent No.1 had filed two complaints, one only against the petitioner and the other (subject complaint) jointly against the respondent No.2 and the petitioner with regard to two separate cheques. It is contended that the allegations in the two complaints were identical and in both the cases, the two cheques were alleged to have been issued by the petitioner. He submits that both the cases were consolidated and since the complaint and the defence of the petitioner and the respondent No.2 were common, common evidence was led. 9. Learned counsel for the petitioner submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself not mean that no goods were ever supplied. In this case the appellant has also alleged that these cheques were pre signed and left with the complainant/respondent. He himself admitted that the dispute started between the two on financial issues. If that is the position then he should have instructed the bank to stop payment or demanded back his cheque from the complainant/respondent but there is no such notice sent to the complainant/respondent demanding back his cheques or any communication sent to the bank to stop the payment of this cheque as this cheque was not issued against any legal liability. The record shows that in fact the cheque in question bounced due to insufficiency of funds and not due to stoppage of payment as deposed by the witness of the defence itself. Admittedly the cheque bears the signature of the appellant/accused. Statement of account maintained by the complainant/respondent clearly shows an outstanding of ₹ 8,80,500/- and to that extent the Ex.CW-1/2 was issued. Legal notice was sent which was duly served. Despite service of notice no payment was made. 20. Keeping in view all these facts, in my opinion Ld. Trial Court has rightly held the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were directly sent to the customers and the billing was routed through various companies as there was under invoicing. Further, the case of the petitioner is that this was done in the name of the petitioner and respondent No.2 as petitioner was an employee. 17. The contention of the petitioner further was that the respondent No.1 used to deposit cheque or cash in the account of the petitioner in his absence. As per the petitioner, respondent No.1 had got 5 blank cheques signed from the petitioner and subject cheque as also the cheque used in the other case were part of the said 5 blank cheques that had been taken from the petitioner and were successive in number. Both the cheques were presented on the same date and legal notices qua both the cheques was also issued on the same date. 18. In the other proceedings, the Appellate Court, by judgment dated 16.10.2014, held as under:- 11. Now, coming to the judgment in hand. The Ld. M.M. vide judgment dated 10.05.2013 has held that the accused is not able to rebut the presumption and vide order on sentence dated 15.05.2013 the Ld. M.M. has held that account of the convict was several times operated by the complainant in absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to the complainant on account of supply of any equipment. The accused was able to establish instances where products imported by the complainant in the name of the firm M/s Sony Impex were shown as sold to M/s Taurian Overseas; from M/s Taurian Overseas to M/s Xeon Infotech; from M/s Xeon Infotech to M/s Grafiti Infotech and the entire payment received in respect of such sale was routed back firstly into the account of M/s Xeon Infotech and from there to the account of M/s Taurian Overseas and further into the account of M/s Sony Impex. The complainant also admitted to have been operating the account of the accused in the name of M/s Taurian Overseas in his absence and even making deposits in the said account on his own. The defence of the accused that he was an employee of the complainant receiving salary in the form of salary and commission, was also established. As discussed in the impugned judgment, all these banks clearly show that the accused was able to set up a probable defence which certainly cannot be said to be either perverse or as suffering from misappreciation of evidence. In fact, the judgment of the learned Magistrate failed to consider the evidence on re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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