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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 ..... 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. The notice u/s 251 Cr.P.C has already been framed against the petitioners and the petitioners have pleaded not guilty and claimed trial. Upon analyzing the provisions of the NI 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 NI 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.PC, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent 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 ₹ 45,12,48,163/- has been assigned to Citibank. 3. On the other hand, according to the respondent, petitioner No. 1 herein gave two cheques amounting to ₹ 23,20,70,484/- each to the respondent in discharge of its liabilities in respect of purchase order dated 10.12.2014. As per schedule 1 of the said purchase order if the petitioner No. 1 failed to make payment of two consecutive installments, the respondent could deposit the said cheques to recover the debt. 4. On 31.01.2015, petitioner No. 1 discharged installment by paying ₹ 1,28,92,805/- but thereafter no payment was made by petitioner No. 1 to the respondent despite having received all the goods under the purchase order. On 25.03.2015, receivable purchases agreement was entered between the respondent and Citibank whereby respondent assigned the receivables due from the petitioner under the purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the debt. It is further argued that the entire amount mentioned in the purchase order was considered as a debt due and payable by the petitioner No. 1 and as the petitioner No. 1 failed to pay two consecutive installments to discharge the debts, therefore, there exists a legally enforceable debt against the petitioners. It is further argued that as per the receivable purchases agreement entered between the respondent and Citibank, respondent assigned the receivables due from petitioner No. 1 under the purchase order to Citibank and as per clause 7.1 of the RPA, if the Citibank did not receive the receivables in full from the petitioner No. 1 the respondent was obligated to purchase such receivables at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily 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 legislature is the trial of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of section 145(1) of the NI Act and has to be read during the trial. The witnesses i.e. the complainant or other witnesses can be recalled only when the accused makes such an application and this application must disclose the reason why the accused wants to recall the witnesses and on what point the witnesses are to be cross examined. 11. The offence under Section 138 of the NI Act is an offence in the personal nature of the complainant and since it is within the spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 say that the Court, in exercise of its jurisdiction under Section 482 Cr.PC. 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.PC. at this stage. 16. In Rajiv Thapar Ors. V. Madan Lal Kapoor, (2013) 3 SCC 330, it has been held by the Supreme Court as under: 28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itable 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 defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 17. Upon analyzing the provisions of the NI Act, it is clear that Section 138 of the Act spells out the ingredien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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? (b) Whether there exists a legal enforceable debt payable by petitioners to respondent in view of receivable purchases agreement entered between respondent and Citibank whereby respondent assigned receivables due from petitioner No. 1 under the purchase order to Citibank? (c) Whether the complaint u/s 138 of NI Act filed by respondent was maintainable in view of assignment of debt by the respondent to Citibank? 22. In the instant case, all these issues mentioned hereinabove involves disputed question of facts and law and cannot be decided unless and until the parties go to trial and lead their respective evidence. 23. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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