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2020 (1) TMI 1099 - HC - Indian LawsMaintainability of petition - whether the petitioners having availed of the remedy of revision should be allowed to take recourse to section 482 Cr.P.C as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred U/s 397 (3) Cr.P.C? - HELD THAT - The Negotiable Instruments Act provides sufficient opportunity to a person who issues the cheque. Once a cheque is issued by a person it must be honoured and if it is not honoured the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay he is bound to face the criminal trial and consequences. It is seen in many cases that the petitioners with malafide intention and to prolong the litigation raise false and frivolous pleas and in some cases the petitioners do have genuine defence but instead of following due procedure of law as provided under the NI Act and the Cr.PC and further by misreading of the provisions such parties consider that the only option available to them is to approach the High Court and on this the High Court is made to step into the shoes of the Metropolitan Magistrate and examine their defence first and exonerate them. The High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of accused as to why he should not be tried under Section 138 of the NI Act. The offence under Section 138 of the NI Act is an offence in the personal nature of the complainant and since it is within the special knowledge of the accused as to why he is not to face trial under section 138 N.I. Act he alone has to take the plea of defence and the burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question it is he alone who knows the defence and responsibility of spelling out this defence to the Court and then proving this defence is on the accused - Sections 143 and 145 of the NI Act were enacted by the Parliament with the aim of expediting trial in such cases. The provisions of summary trial enable the respondent to lead defence evidence by way of affidavits and documents. Thus an accused who considers that he has a tenable defence and the case against him was not maintainable he can enter his plea on the very first day of his appearance and file an affidavit in his defence evidence and if he is so advised he can also file an application for recalling any of the witnesses for cross-examination on the defence taken by him. Upon analyzing the provisions of the NI Act it is clear that Section 138 of the Act spells out the ingredients of the offence as well as the conditions required to be fulfilled before initiating the prosecution - These ingredients and conditions are to be satisfied mainly on the basis of documentary evidence keeping in mind the presumptions under Sections 118 and 139 of the NI Act and Section 27 of the General Clauses Act 1897 as well as the provisions of Section 146 of the Act. This Court does not find any material on record which can be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so the defence as raised by the petitioners in the petition requires evidence which cannot be appreciated evaluated or adjudged in the proceedings under Section 482 of Cr.PC. The petitioners therefore cannot be allowed to take recourse to section 482 Cr.P.C as a substitute for initiating second revision petition when there is nothing to show that there is serious miscarriage of justice or abuse of the process of law. There are no flaw or infirmity in the proceedings pending before the Trial Court. However the Trial Court shall certainly consider and deal with the contentions and the defence of the petitioners in accordance with law - petition dismissed.
Issues Involved:
1. Legality of the notice issued under Section 138 of the Negotiable Instruments Act. 2. Applicability of Section 482 of the Cr.P.C. after availing the remedy of revision. 3. Sufficiency of the complaint and documents to constitute a prima facie case under Section 138 of the NI Act. 4. Scope and limitations of the High Court's jurisdiction under Section 482 Cr.P.C. Issue-wise Detailed Analysis: 1. Legality of the Notice Issued under Section 138 of the Negotiable Instruments Act: The petitioners argued that the notice issued on March 2, 2017, was defective as it demanded an amount exceeding the cheque amount, rendering the notice vague and ambiguous. The court, however, held that the notice must be read as a whole, and it clearly set out the details of the dishonoured cheques. The court found no ambiguity or confusion in the demand made in the notice, as there was no denial from the petitioners regarding the issuance or dishonour of the cheques for insufficient funds. The court concluded that the judgments cited by the petitioners were not applicable to the present case. 2. Applicability of Section 482 of the Cr.P.C. after Availing the Remedy of Revision: The court addressed whether the petitioners could invoke Section 482 Cr.P.C. after already availing the remedy of revision under Section 397 Cr.P.C. The court referred to the Supreme Court rulings in Rajinder Prasad Vs. Bashir and Kailash Verma vs. Punjab State Civil Supplies Corporation & Anr., which emphasized that the power under Section 482 must be exercised sparingly and cannot be used as a substitute for a second revision. The court noted that the petitioners had already invoked the revisional jurisdiction, and there was no serious miscarriage of justice or abuse of the process of law to warrant the exercise of jurisdiction under Section 482 Cr.P.C. 3. Sufficiency of the Complaint and Documents to Constitute a Prima Facie Case under Section 138 of the NI Act: The Metropolitan Magistrate, in the order dated December 19, 2017, found that a prima facie offence under Section 138 read with Section 141 of the NI Act was made out based on the complaint and attached documents. The court took cognizance of the offence and issued summons to the accused. The petitioners challenged this order in the Sessions Court, which dismissed their revision petition, affirming the sufficiency of the complaint and documents to proceed further. 4. Scope and Limitations of the High Court's Jurisdiction under Section 482 Cr.P.C.: The court reiterated that the jurisdiction under Section 482 Cr.P.C. should be exercised with caution and only in cases of serious miscarriage of justice or abuse of the process of law. The court emphasized that the High Court cannot usurp the powers of the Metropolitan Magistrate and entertain pleas that should be raised during the trial. The court highlighted that the provisions of the NI Act and Cr.P.C. provide sufficient opportunities for the accused to present their defence during the trial. The court found no material on record warranting the invocation of its jurisdiction under Section 482 Cr.P.C. and dismissed the petition. Conclusion: The court dismissed the petition, finding no flaw or infirmity in the proceedings before the Trial Court. The court affirmed that the Trial Court should consider and deal with the contentions and defence of the petitioners in accordance with the law. The prayers sought by the petitioners were deemed untenable, and the petition was dismissed along with the associated application.
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