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TMI Blog2020 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... fide 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 NI 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 NI Act. An offence under Section 138 of the NI Act is technical in nature and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter - 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. There are no flaw or infirmity in the proceedings pending before the Trial Court. However, the Trial Court shall certainly consider and deal with the contentions and the defence of the petitioner in accordance with law - petition dismissed. - CRL.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opolitan Magistrate vide impugned order dated 19.11.2018 summoned the petitioner U/s 138 NI Act. 4. The petitioner feeling aggrieved, filed the present petition invoking jurisdiction of this Court U/s 482 Cr.P.C. 5. It has been mainly argued by the Ld. counsel for the petitioner that the cheque in question was a post dated cheque which was issued as a security cheque without any liability and privity of contract between the petitioner and respondent No. 2. It is further argued that there is alteration over the leaflet of the cheque in question which was very much apparent but the Ld. trial Court has failed to consider the same. 6. Now coming to the legal position in this case and taking into consideration the various provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Court shall recall the witness by recording reasons thereto. 9. Sections 143 and 145 of the NI Act were enacted by the Parliament with the aim of expediting trial in such cases. The provisions of summary trial enable the respondent to lead defence evidence by way of affidavits and documents. Thus, an accused who considers that he has a tenable defence and the case against him was not maintainable, he can enter his plea on the very first day of his appearance and file an affidavit in his defence evidence and if he is so advised, he can also file an application for recalling any of the witnesses for cross-examination on the defence taken by him. 10. In view of the procedure prescribed under the Cr.PC, if the accused appears after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 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. 13. The provisions of Sections 142 to 147 lay down a Special Code for the trial of offences under the Chapter XVII of the N.I. Act. While considering the scope and ambit of the amended provisions of the Act, the Supreme Court in Mandvi Co. Op. Bank Ltd. v. Nimesh B. Thakore, AIR 2010 SC 1402 , has held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Cr.PC, the main body of adjective law for criminal trials. The Supreme Court has further held as under:- 17. It is not difficult to see that sections 142 to 147 lay down a kind of a special code for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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