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TMI Blog2019 (3) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 under Section 251 of the Code, 1973 and proceedings there under; c. Quash Complaint Case No. 10159 of 2017 and proceedings there under." 2. On 10.12.2014, petitioner No. 1 had placed an order for procurement of IT equipments worth Rs. 46,41,40,968/- with the respondent company. According to the petitioner No. 1 two undated cheques worth Rs. 23,20,70,484/- each were issued by the petitioner company as security alongwith purchase order. According to the petitioner No. 1 it was decided that the payment was to be made in 24 monthly installments as per purchase order and in case of nonpayment of two consecutive installments the security cheques were liable for deposits. On 12.12.2014, petitioner No. 1 wrote a letter to the respondent that the respondent has to take back the material in case petitioner No. 1 is unable to sell the material in the market during these two years of payment schedule in lieu of payment. According to petitioner No. 1 on 31.05.2015, a notice of assignment of debt was sent by respondent to petitioner No. 1 intimating that debt of Rs. 45,12,48,163/- has been assigned to Citibank. 3. On the other hand, according to the respondent, petitioner No. 1 herein ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assignments of debt by respondent to Citibank, Citibank had the right to claim the money which is also mandated by Factoring Regulation Act, 2011 and thus the complaint u/s 138 of NI Act filed by respondent before Ld. MM was not maintainable. Ld. Sr. Counsel for the petitioners has relied upon : 1. Exports India and Anr. V. State and Anr. (Del HC) (2006) 2. M/s College Culture and ors. V. Apparel Export Promotion Council and Anr (Del HC) (2007): 3. Indus Airways Pvt. Ltd. and Ors. v. Magnum Aviation Pvt Ltd. and Anr (SC) (2014) 4. Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. (SC)(2016) 8. On the other hand, it is argued by the Ld. counsel for the respondent that the cheques issued by petitioner No. 1 were not security cheques as the goods were delivered by the respondent to the petitioner No. 1 pursuant to the purchase order. It is further argued that the petitioner No. 1 failed to make the payment under the purchase order after the first payment and schedule 1 of the purchase order provides that if the petitioner No. 1 failed to make payment of two consecutive installment, respondent could deposit and encash the said cheques to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 NI Act. This plea, as to why he should not be tried under Section 138 of the NI 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. Along with this plea, he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of the NI Act to recall the complainant to crossexamine him on his plea of defence. However, only after disclosing his plea of defence, he can make an application that the case should not be tried summarily but as a summons trial case. 10. An offence under Section 138 of the NI Act is technical in nature and defences, which an accused can take, are inbuilt; for instance, the cheque was given without consideration, the accused was not a Director at that time, accused was a sleeping partner or a sleeping Director, cheque was given as a security etc. etc., the onus of proving these defences is on the accused alone, in view of Section 106 of the Indian Evidence Act, 1872. Since the mandate of the legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 NI 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. 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. PC., 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. 14. In this case, notice u/s 251 Cr.P.C has already been framed against the petitioners and the petitioners have pleaded not guilty and claimed trial. 15. Now, coming to the jurisdiction, suffice it to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, in as much as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of well known legal principles involved in each and every matter. Adverting back to 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.PC at this stage. More so, the defence as raised by the petitioners in the petition requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC and the same can only be proved in the Court of law. Reliance can be placed upon "State of Madhya Pradesh Vs. Yogendra Singh Jadon & Anr"., Criminal Appeal No. 175 of 2020 (Arising out of SLP (Criminal) No. 172 of 2017) decided by the Hon'ble Supreme Court on January 31, 2020 in which it has been held that "the power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in Court of law". 21. The main issues apart from other issues involved in the present petition which could be raised by either of the parties are : (a) Whether the cheques issued by petitioner No. 1 are in the nature of security cheques? ..... X X X X Extracts X X X X X X X X Extracts X X X X
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