JUDGMENT

INDERJIT SINGH, J. --

Criminal Misc.No.10649 of 2016

1. This is an application for condonation of delay of 82 days in filing the application for grant of leave to file an appeal.

2. Heard. For the reasons, mentioned in the application, the same is allowed. Delay of 82 days in filing the said application is condoned.

Criminal Misc.No.A-620-MA of 2016

3. Applicant Manoj Kumar Saini has filed the instant application against respondent Sunil Gupta, under Section 378 (4) Cr.P.C., for grant of leave to file an appeal.

4. It is mainly stated in the application that accompanying appeal has been filed which is likely to succeed. The applicant has a good prima facie case in his favour. It is prayed that leave be granted to file an appeal.

5. Brief facts of the case are that complainant Manoj Kumar Saini filed complaint against Sunil Gupta-respondent under Section 138 of the Negotiable Instruments Act. It is mainly stated in the complaint that complainant had friendly relation with accused, who by taking advantage of friendly relations, had borrowed an amount of Rs.5,00,000/- from the complainant for his personal requirements and agreed to repay the same within short period. The accused issued cheque No.338708 dated 10.09.2014 for an amount of Rs.5,00,000/-, which on presentation of encashment returned back with remarks 'payment stopped by drawer'. Thereafter, the complainant issued legal notice. When the amount was not paid then the complaint was filed within time.

6. The learned trial Court, after appreciation of evidence, acquitted the accused.

7. I have heard learned counsel for the applicant and have gone through the record.

8. The accused raised the defence that he did not borrow Rs.5,00,000/- from the complainant. Rather, he borrowed an amount of Rs.1,00,000/- from the complainant in the month of October, 2010 and at the time of borrowing the loan itself, as per demand of the complainant, he handed over five blank signed security cheques bearing Nos.338708 to 338712 to him. Thereafter despite receiving the loan amount, the complainant by misusing the security cheques, has filed the complaint.

9. Perusal of the record shows that first of all no date, month or years has been mentioned in the complaint as to when the loan was given. Neither the place where the loan was given nor any fact has been mentioned as to in whose presence, the loan was given. Even no security document has been taken from the accused at the time of granting loan nor receipt was taken. No document of any type has been placed on record to show the loan transaction. Even no document of any type has been produced to show that such a huge amount has been withdrawn from any bank etc. From the statement of account Ex.D2, it has been proved that the cheque Nos.338706, 338707, 338708, 38702 and 338714 have already been cleared in the year 2010 itself which corroborates the version of the accused that these cheques have been given as security cheques. The defence, raised by the accused, is probable. The presumption under Section 139 of the Negotiable Instruments Act has been rebutted. The findings, returned by the learned trial Court, are correct, as per evidence and law and these findings, in no way can be held as perverse. Nothing has been pointed out as to which material evidence has been misread and as to which material evidence has not been considered by the learned trial Court.

10. Therefore, from the above discussion, finding no ground to grant leave to the applicant to file an appeal, the instant application stands dismissed.

Application dismissed.

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