crapln4105.09 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINALAPPLICATION NO.4105 OF 2009 ________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | ________________________________________________________ Heard learned Counsel for the applicant and learned Counsel for Respondent. 2 The Counsel for the applicant submits that one of the grounds for dismissal of the complaint filed by the present applicant is that the earlier complaint STC No.21/2004 filed by father of the applicant in respect of Cheque No.444413 was dismissed and yet, in the same month the applicant paid the amount to respondent, and filed complaint in respect of Cheque No.444414, which fact is disbelieved by the trial Court. However, Counsel for the applicant invited my attention to the order passed in Complaint STC crapln4105.09 2 No.21/2004, which clearly shows that the said complaint was rejected on the ground of limitation. There was delay in filing the complaint and on that ground alone the complaint filed by the father of the present applicant came to be rejected. Therefore, Counsel for applicant submits that this ground is sufficient to entertain this application. Apart from this, Counsel for the applicant further submits that the respondent has not disputed the signature on the cheque, notice issued by the applicant and the extract from account etc. Therefore, he would submit that this matter requires consideration. 3 On the other hand, the Counsel for respondent submits that by placing on record the documents which are referred in para 10 of the impugned judgment, the respondent has rebutted the presumption under Section 139 of the Negotiable Instruments Act. He further invited my attention to the findings recorded by the crapln4105.09 3 trial Court and submitted that the application is devoid of merits and the same may be rejected. 4 Upon hearing the learned Counsel for the parties and upon perusal of the paragraphs 10 and 11 of the impugned judgment, it appears that the conclusions reached at by the trial Court are not correct. The Court should have taken into consideration that the complaint filed by the father of the applicant herein was dismissed on technical ground that the same was not filed within limitation. The conclusions reached at by the trial Court in para 11, prima facie, appear to be without any basis since the respondent did not enter into the witness box to rebut the presumption u/s 139 of the N.I. Act. 5 Therefore, in my opinion, case is established to entertain this application. Hence, leave to file appeal is granted and application is disposed of. crapln4105.09 4 Registry to register the appeal. 6 Appeal is admitted. Counsel for respondent waives service on admission of appeal. (S.S. SHINDE, J.) 09.02.2011. PLK/*