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2022 (4) TMI 767 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or liability or not - cross-examination of witnesses - rebuttal of presumption - Section 138 of the N.I. Act - HELD THAT - The offence under Section 138 of the N.I. 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 defense and the burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defense, he is still to be considered innocent. If an accused has a defense against dishonor of the cheque in question, it is he alone who knows the defense and responsibility of spelling out this defense to the Court and then proving this defense is on the accused. In view of the procedure prescribed under the Cr.P.C, if the accused appears after service of summons, the learned Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C and enter his plea of defence and fix the case for defence evidence, unless an application is made under Section 145(2) of N.I. Act for recalling a witness for cross-examination on by an accused of defence - Once the summoning orders in all these cases have been issued, it is now the obligation of the accused to take notice under Section 251 of Cr.P.C., if not already taken, and enter his/her plea of defence before the concerned Metropolitan Magistrate's Court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witnesses, they should do so before the Court of Metropolitan Magistrate. In the instant case the respondent no. 2/complainant in his complaint under Section 138 and 142 of N.I. Act has made specific averments that the Accused No.1 is a Partnership Firm and through its proprietor approached the Complainant for providing shuttering material and requested the complainant to supply the said materials to the Accused. The Accused in order to partly liquidate the outstanding amount and towards the legally enforceable debt, which has been due and payable to the complainant, issued a cheque, which was dishonored. Jurisdiction - HELD THAT - The Court, in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. The issues involving facts raised by the petitioner by way of defence can be canvassed only by way of evidence before the Trial Court and the same will have to be adjudicated on merits of the case and not by way of invoking jurisdiction under Section 482 Cr.P.C. at this stage - Upon analyzing the provisions of the N.I. 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 N.I. Act and Section 27 of the General Clauses Act, 1897 as well as the provisions of Section 146 of the Act. The parameters of the jurisdiction of the High Court in exercising jurisdiction under Section 482 Cr.P.C, are now almost well-settled. Although it has wide amplitude, but a great deal of caution is also required in its exercise. The requirement is the application of well-known legal principles involved in each and every matter Adverting back the facts of the present case, 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.P.C. at this stage - More so, the defence raised the petitioners in the petition requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.P.C. and the same can only be proved in the Court 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 defense of the petitioner in accordance with law - petition dismissed.
Issues Involved:
1. Quashing of the Criminal Complaint under Section 138 of the Negotiable Instruments Act. 2. Quashing of the summoning order dated 31.08.2021. 3. Validity of the defense raised by the petitioner under Section 482 Cr.P.C. Issue-wise Detailed Analysis: 1. Quashing of the Criminal Complaint under Section 138 of the Negotiable Instruments Act: The petitioner sought to quash the criminal complaint filed by the respondent, arguing that there was no enforceable debt or liability. The petitioner contended that the issuance of a No Objection Certificate by the respondent, which stated no amount was payable, invalidated the complaint. Additionally, the petitioner argued that the cheques were issued as security and not for any enforceable debt. The court, however, emphasized that Section 138 of the N.I. Act provides sufficient opportunity to the issuer of the cheque to honor it, and if dishonored, to face criminal trial. The court cannot delve into disputed facts or the truth of allegations at this stage but must allow the trial court to adjudicate based on evidence. 2. Quashing of the summoning order dated 31.08.2021: The petitioner argued that the summoning order was mechanical and lacked reasons. The court clarified that the High Court cannot usurp the powers of the Metropolitan Magistrate and entertain pleas that should be raised during the trial. The accused must raise their defense before the Metropolitan Magistrate under Section 251 of the Cr.P.C. and Section 263(g) of the Cr.P.C. The court reiterated that the trial procedure under the N.I. Act is designed to be expeditious, and the accused must present their defense and any applications for recalling witnesses during the trial. 3. Validity of the defense raised by the petitioner under Section 482 Cr.P.C.: The petitioner invoked Section 482 Cr.P.C. to quash the proceedings, arguing that the complaint was based on false averments and that there were discrepancies in the authorization of the respondent's representative. The court noted that the jurisdiction under Section 482 Cr.P.C. is limited and cannot be used to adjudicate disputed questions of fact or evaluate evidence, which must be done during the trial. The court cited the Supreme Court's judgment in Mandvi Co. Op. Bank Ltd v. Nimesh B. Thakore, emphasizing the special procedural code for trials under the N.I. Act to ensure expeditious resolution without compromising the accused's right to a fair trial. Conclusion: The court concluded that the issues raised by the petitioner involve disputed questions of fact that require evidence and cannot be resolved under Section 482 Cr.P.C. The trial court is the appropriate forum to adjudicate these issues. Consequently, the petition was dismissed, and all pending applications were disposed of accordingly. The trial court was directed to consider and deal with the petitioner's contentions and defense in accordance with the law.
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