2020 (6) TMI 359 - HC - Indian Laws

Dishonor of Cheque - Section 138 of the NI Act - trial of summon case - seeking that complainants be directed to produce documents and accounts - HELD THAT - From the provisions contained in Sections 251 to 259 of the Code, it is quite clear that in a summons case what the Court does on the appearance of the accused is to state the particulars of the offence, and to ask him whether he pleads guilty or has any defence to make. If the accused does not plead guilty the Court will proceed to record the evidence on the side of the prosecution, hear the accused and take the evidence that the defence may produce. The Court will then either hold the accused not guilty or convict him. Section 255(3) of the Code empowers the Court to convict the accused of any offence which from the facts admitted or proved he appears to have committed, if the Magistrate is satisfied that the accused would not be prejudiced thereby. It is significant to note that Chapter XX of the Code which deals with trial of summons-cases, does not contemplate a discharge of the accused. It is quite vivid that in summons-cases once offence under Section 138 of the NI Act is registered under the provisions of the NI Act it has to be tried as a summon case and in summon case, there is no provision for recall or revocation of summons already issued to the accused. The accused has to face the trial and he has to be either acquitted or convicted by the said Court and remedy of the accused, if any, to question the order issuing summons to him, is to file a petition under Section 482 of the Code. As such, the order passed by the learned trial Court duly affirmed by the revisional Court holding that in summon-trial of offence under Section 138 of the NI Act the accused cannot be discharged, is an order which does not need interdiction by this Court in exercise of its inherent jurisdiction. Accordingly, both the Courts below are absolutely justified in rejecting the applications filed by the petitioners claiming discharge. The power to issue a summons for the production of a document or a thing is to be exercised whenever the Court considers that its production is necessary or desirable for the purposes of investigation, inquiry, trial or other proceeding. In other words, the power is available to the Court at every stage of proceedings contemplated under the Code. It has to be noticed that this power is available not only to the Court but also to any officer-incharge of a police station and the only condition for the exercise of the power is that the production of the document or the thing should be necessary or desirable for purposes of the proceedings and the only restriction is that contained under sub-section (3) which provides that the provisions of the Section shall not affect Sections 123 and 124 of the Evidence Act or apply to articles in the custody of the Postal or Telegraph authorities. Both the Courts below are absolutely justified in rejecting the application for production of documents at the initial stage - there are nomerit in this batch of petitions under Section 482 of the Code - petition dismissed.

Summary

Issues Involved:
1. Maintainability of the complaint under Section 138 of the Negotiable Instruments Act, 1881.
2. Application for discharge under Section 203 of the Code of Criminal Procedure, 1973.
3. Application for production of documents under Section 91 of the Code of Criminal Procedure, 1973.

Detailed Analysis:

1. Maintainability of the Complaint under Section 138 of the NI Act:
The respondents filed a complaint against the petitioners for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, supported by an affidavit. The complaint stated that the petitioners issued a cheque amounting to ?1,07,99,719/- towards their outstanding liability, which was dishonoured upon presentation. Subsequently, a legal notice demanding payment was sent, which was not responded to, leading to the filing of the complaint. The Judicial Magistrate took cognizance of the offence and issued summons on 8-1-2015. The complaint was found to be maintainable as it met the criteria under Section 138 of the NI Act.

2. Application for Discharge under Section 203 of the Code:
The petitioners filed an application under Section 203 of the Code of Criminal Procedure, 1973, seeking dismissal of the complaint on the grounds of non-maintainability. They also objected based on Section 118(a) of the NI Act read with Section 165 of the Evidence Act, arguing that the complainants had not disclosed their complete identity. The Magistrate rejected the application, stating that in a summon trial, there is no provision for the discharge of accused persons. The revisional court concurred with this finding. The High Court upheld this view, citing the Supreme Court's decision in Adalat Prasad v. Rooplal Jindal, which held that the remedy for challenging the issuance of process lies in a petition under Section 482 of the Code, not in discharge.

3. Application for Production of Documents under Section 91 of the Code:
The petitioners sought the production of documents related to the company Khandwa Oils. The Magistrate rejected this application, stating that the complaint was at an initial stage, and the petitioners could lead evidence at the defense stage. The High Court upheld this decision, referring to the Supreme Court's ruling in State of Orissa v. Debendra Nath Padhi, which clarified that Section 91 of the Code does not confer the right on the accused to seek the production of documents to prove their defense at the initial stage of framing the charge. The necessity and desirability of such documents are to be considered at the appropriate stage of the trial.

Conclusion:
The High Court dismissed the petitions under Section 482 of the Code, affirming that:
- The complaint under Section 138 of the NI Act was maintainable.
- There is no provision for discharge in summon trials under Chapter XX of the Code.
- The application for production of documents was rightly rejected as premature.

The court emphasized that the accused must face the trial, and any challenge to the issuance of summons should be addressed through a petition under Section 482 of the Code. The decisions of the trial and revisional courts were upheld, and the petitions were dismissed in limine.