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TMI Blog2020 (2) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant s evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant s evidence and to extend the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the petitioner submitted that in the present case, the petitioner had appeared for the first time before the learned M.M. on 03.05.2017, when notice under Section 145(2) N.I. Act was framed against him and an opportunity to file application under Section 145(2) N.I. Act was granted. It was directed that the same be filed before the next date of hearing i.e. 11.08.2017. 4. However, on 11.08.2017, an application for exemption from personal appearance on behalf of the petitioner was moved. The Metropolitan Magistrate granted last opportunity to file the application under Section 145(2) N.I. Act, subject to costs of ₹ 2,000/- and the matter was adjourned to 13.10.2017. 5. It has been stated that in the meanwhile, the concerned tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 145(1) N.I. Act, 1881. 9. In Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore reported as (2010) 3 SCC 83 , the Supreme Court held as under:- 30. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760 of 2006 pointed out that sub-section (2) of Section 145 uses both the words, may (with reference to the court) and shall (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Instruments Act, for which the following directions are being given: 23.1 The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2 The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Section 145(2) NI Act as encapsulated in Mandvi Cooperative Bank Limited (supra) and Indian Bank Association (supra) and the facts and circumstances of this case, I am of the view that the trial court ought to have allowed the petitioner s application filed under Section 145(2) N.I. Act. 12. Looking into the facts and circumstances of the case, the impugned order is set aside and the present petition is allowed, subject to payment of costs of ₹ 10,000/- by the petitioner out of which ₹ 5,000/- shall be paid to the complainant and ₹ 5,000/- shall be deposited with the Delhi High Court Legal Services Committee within a period of two weeks from the passing of the order. 13. The petitioner s application under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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