2019 (8) TMI 946 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - HELD THAT - In the present case, Respondent No.1 Complainant in his affidavit in reply has specifically stated that though the order of the learned Magistrate served upon the Petitioner, she did not appear before the trial Court, but since the bailable warrant was issued by the trial court against the Petitioner, then the Petitioner appeared before the trial court to obtain the bail, and her plea was recorded. It is also specifically stated that at the time of recording of plea, there was no defence raised by the Petitioner before the trial court to prove her innocence. It is informed that the matter is fixed for recording of evidence. This court is of the considered view that filing of present Petition is nothing but an attempt to prolong the matter. No case is made out to cause interference in the order of issuance of process - Petition dismissed.

Summary

Issues Involved:
1. Legality of the order dated 23/02/2018 issued by the Metropolitan Magistrate directing the issuance of process against the petitioner and co-accused under Section 138 of the Negotiable Instruments Act.
2. Validity of the cheque issued by the co-accused and its connection to the petitioner.
3. Allegations of malafide intentions and wrongful use of a blank cheque by the complainant.
4. The procedural propriety of the petitioner approaching the High Court without first seeking remedy from the revisional court.

Detailed Analysis:

Issue 1: Legality of the Order Dated 23/02/2018
The petitioner challenged the order dated 23/02/2018 by the Metropolitan Magistrate, which directed the issuance of process against both the petitioner and the co-accused under Section 138 r/w 141 of the Negotiable Instruments Act. The court examined the complaint, verification, and documents presented, concluding that a prima facie case was made against both accused. The High Court upheld this order, emphasizing that the trial court's decision was based on adequate material and allegations that warranted a trial.

Issue 2: Validity of the Cheque and Petitioner's Connection
The petitioner argued that the cheque in question, which was dishonored due to "funds insufficient," was issued by her husband (co-accused) and not by her. The petitioner claimed no involvement in the transaction. However, the complainant provided evidence, including emails and professional bills, indicating that legal services were rendered to both the petitioner and her husband. The court noted that the professional bill included charges for services provided in cases where both the petitioner and her husband were respondents, suggesting joint liability. The High Court found that these details warranted further examination during the trial.

Issue 3: Allegations of Malafide Intentions and Wrongful Use of a Blank Cheque
The petitioner contended that the complainant had used a blank cheque signed by her husband with wrongful intent and filed the complaint with malafide intentions. The court held that such allegations could only be substantiated through evidence presented during the trial. The High Court emphasized that the trial was the appropriate forum to address these claims and determine the legitimacy of the cheque and the intentions behind its use.

Issue 4: Procedural Propriety of Approaching the High Court
The complainant argued that the petitioner should have approached the revisional court before seeking relief from the High Court. The court agreed, referencing judgments from the Delhi High Court which stated that the accused must first present their defense before the Magistrate. The High Court noted that the petitioner had not initially appeared before the trial court and only did so after a bailable warrant was issued. The court viewed the petitioner's direct approach to the High Court as an attempt to delay proceedings and emphasized the importance of following proper procedural channels.

Conclusion:
The High Court rejected the writ petition, affirming the trial court's order to issue process against the petitioner and co-accused. The court held that the allegations and evidence presented warranted a trial to determine the facts and liabilities. All contentions on merits were left open for adjudication during the trial, with the High Court's observations being prima facie and limited to the writ petition adjudication.