2023 (2) TMI 365 - HC - Indian Laws

Dishonor of Cheque - cheque misused after stealing - It has been mainly argued by the petitioner that the complaint filed by the complainant under Section 138 of Negotiable Instruments Act, against the petitioner is false and frivolous and the same has been made after making forged signatures on the cheques in question - 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 N.I. 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 N.I. Act. This plea, as to why he should not be tried under Section 138 of the N.I. Act is to be raised by the accused before the Court of the Metropolitan Magistrate under Section 251 of the Cr.PC under Section 263(g) of the Cr.PC. In view of the procedure prescribed under the Cr.PC, 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.PC and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under Section 145(2) of N.I. Act for recalling a witness for cross-examination on plea of defence. If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. Even if the petitioner is to be believed that the cheques went missing way back in the year 2009-2010, it is really shocking that he has failed to lodge a single police complaint regarding the same and has remained silent for so many years. - Petition dismissed.

Summary

Issues:
1. Quashing of summoning orders under Section 138 N.I. Act.
2. Allegations of false and frivolous complaint.
3. Delay in filing the petitions.
4. Defense against dishonored cheques.
5. Applicability of legal judgments.
6. Burden of proof on the accused.
7. Summary trial provisions under Sections 143 and 145 of N.I. Act.
8. Obligations of the accused after summoning orders.
9. Bonafide filing of the petition.
10. Allegations of forged signatures on cheques.

Detailed Analysis:
1. The petitions sought quashing of summoning orders under Section 138 N.I. Act issued by the Metropolitan Magistrates for dishonored cheques. The petitioner alleged the complaints were false and frivolous, based on forged signatures, and filed after an unreasonable delay, invoking the jurisdiction of the High Court under Section 482 Cr.P.C.

2. The petitioner argued that the complainant misused the cheques, stolen in 2009-2010, and failed to establish a legally enforceable debt. The respondent contended that the cheques were dishonored within their validity, and the petitioner knowingly issued them without sufficient funds, shifting the burden of proof to the accused.

3. The High Court noted the delay in filing the petitions and emphasized that a satisfactory explanation for the delay was crucial, which the petitioner failed to provide, weakening their case.

4. The legal judgments cited by the petitioner were considered, but the court found them inapplicable to the present case, as the summoning orders were based on thorough examination of complaints and evidence by the Magistrates, indicating no error in summoning the petitioner.

5. The court highlighted the accused's obligation to present a defense under Section 138 N.I. Act, emphasizing that the burden of proof lies with the accused to establish a defense against the dishonored cheques, and the accused should follow the prescribed procedures under Cr.P.C.

6. The judgment reiterated the purpose of Sections 143 and 145 of the N.I. Act to expedite trials, enabling the accused to present defense evidence through affidavits and documents promptly, emphasizing the accused's responsibility to enter a plea and present a defense without unnecessary delay.

7. The court dismissed the petitioner's claim of bonafide filing, emphasizing the lack of evidence or police complaints regarding the alleged misuse of cheques, questioning the petitioner's silence for many years, and ultimately dismissed the petitions as devoid of merit.