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TMI Blog2018 (1) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... CRRs are same and almost same argument has been advanced by learned Advocates for both the parties and that is why all the matters have taken up together for disposal. The factual matrix of the case under reference may be stated herein below:- On the basis of a petition of complaint filed by one M/s. JMS Mining Services Private Limited, formerly known as M/s. JMS Mining Services Private Limited having its office in 27, Shakespeare Sarani, Kolkata -700017 represented by its authorized representative Shri Ganesh Gupta (herein after referred to as complainant/opposite party) the complaint case no. CS/63257/16 initiated against the present petitioners for commission of alleged offences punishable under Section 138/141 of the Negotiable Instrument Act, 1881. Learned Magistrate took cognizance of the said petition of complaint and after examination of the authorized representative under Section 200 of the Code of Criminal Procedure issued summons against the present petitioners for answering charges under Section 138 and 141 of the Negotiable Instrument Act, 1881. Being aggrieved by and dissatisfied with such order of learned Magistrate this application under Section 482 of the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10% value of the contract. Till then balance performance security will be confirmed by an equal value of cheque with an undertaking that JMS shall have the liberty to take legal action against DCS u/s 138 of the Negotiable Instruments Act 1881 or any other act or law in the event of any default or non-performance on the part of DCS in honoring the said cheque. The said security cheque will be returned to DCS once the performance BG value reaches 10% (ten) Value of contract. 50% of the performance guarantees will be released after three months of completion of job and rest after defect liability period." Learned Advocate appearing on behalf of the petitioner contended by referring a decision reported in (2014)12 SCC 539 (Indus Airways Private Limited & Ors. Vs. magnum Aviation Private Limited & Anr.) that since the cheques were issued as security deposit, and there was no existence of legally enforceable debt for other liability, learned trial Court erroneously took cognizance of the offence under Section 138/141 of the Negotiable Instrument Act, 1881 and accordingly in terms of the decision mentioned herein above, the case under reference ought to be quashed. Learned Advocate app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such factual aspects as has been argued by learned Advocate of the petitioner, cannot be looked into and cannot be decided in a proceeding under Section 482 of the Code of Criminal Procedure. Thirdly, learned magistrate after being satisfied about the existing liability in respect of the cheques issued by the present petitioners, had issued summons against the present petitioners and such satisfaction of the learned Magistrate cannot be challenged in a proceeding under Section 482 of the Code of Criminal Procedure. It is further submitted that all the decisions referred to herein above relate to the case under Section 420 of the Indian Penal Code and said cases do not have any bearing in the context of the given facts and circumstances. Moreover in a decision reported in 2016 (9) Scale (Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited) the Hon'ble Apex Court has distinguished and overruled the decision reported in (2014)12 SCC 539 (Indus Airways Private Limited & Ors. Vs. Magnum Aviation Private Limited and Another)(Supra). Learned Advocate for the opposite party has also relied on a decision reported in (2002) 1 SCC 234 (M.M.T.C. Ltd. and Anr. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate at the time of issuance of summons should not be subjected to scrutiny by the High Court either in revision or in proceeding under Section 482 of the Code of Criminal Procedure. On careful scrutiny of the materials on record it transpires that an agreement was executed by and between the parties and the petitioners executed bank guarantee and also handed over some cheques in favour of the complainant/opposite party. Clause 10 clearly reveals that the parties had agreed that the complainant/opposite party shall have the liberty to take legal actions against the present petitioner under Section 138 of the Negotiable Instrument Act, 1881 or any other Act or law in the event of any default or non-performance on the part of the petitioners in honouring the said cheque. It is therefore apparent from the said clause that authority was given to the complainant/opposite parties to take appropriate action under Negotiable Instrument Act and the present petitioners also agreed to that effect. It is next to impossible on the part of this Court in exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure to meticulously examine the entire factual aspect as has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rving that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. In Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. (2008) 13 SCC 678, this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: (SCC pp. 685-87, paras 17 & 22) The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in application of the well-known legal principles involved in the matter. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 420 of the Indian Penal Code. In the aforesaid decisions the provisions under Section 138/141 of the Negotiable Instrument Act, 1881 were not dealt with by the Hon'ble Supreme Court. On the contrary, Hon'ble Supreme Court has categorically observed in Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited (Supra) that the factual aspects/factual defences of the petitioners as to if the cheques were given as security or not or whether there was outstanding liability or not is a question of fact which can be determined only by the trial Court after recording evidences of the parties. Hon'ble Supreme Court has categorically observed that the High Court should not have expressed it's view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure to come to a conclusion that the offence is made out and the High Court has erred in law in coming into factual aspects of the matter which were not admitted between the parties. In other words, while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, all such factual aspects cannot be scrutinized meticulously so as to come to logical conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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