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TMI Blog2021 (3) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... se is on the accused. In view of the procedure prescribed under the Cr.P.C, if the accused appears after service of summons, the learned Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during trial and 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 under Section 145(2) of N.I. Act for recalling a witness for crossexamination on by an accused of defence - 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.P.C., 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. The prosecution under section 138 of the Act can be launched for vicarious liability against any person, who at the time of commission of offence was in charge and responsible for the conduct of the business of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties concerned. There are no flaw or infirmity in the proceedings pending before the Trial Court - petition dismissed. - CRL. M.C. 296/2021 & Crl.M.A. 1529/2021 - - - Dated:- 10-3-2021 - HON'BLE MR. JUSTICE RAJNISH BHATNAGAR Petitioner Through: Mr. Mandeep Singh Vinaik, Advocate. Respondents Through: Mr. Mukesh Kumar, APP for the State. Mr. Sonal Anand, Advocate for R-2. RAJNISH BHATNAGAR, J. 1. The present petition U/s 482 Cr.P.C. has been filed by the petitioner with the following prayers:- It is therefore most respectfully prayed that this Hon ble Court be pleased to set aside the impugned order dated 16.12.2020 passed in Revision Petition No. 97/2020, by the learned District and Sessions Judge, West District, Tis Hazari Courts, Delhi, and quash the complaint filed by the Respondent no.2, being CC No. 7398/19, pending before the Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi against the petitioner. 2. The facts of the case are that in January-2009, accused No2 Guneet Bhasin. accused No. 3 Sumit Bhasin (Petitioner herein) and accused No.4 Smt. Summy Bhasin approached Respondent No 2/Complainant and allured him into in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or he ever participated in the transactions in question and merely because he was Director of the company at the relevant time does not make him vicariously responsible for the acts and omissions on the part of the remaining Directors or the accused company itself and hence has no role in the offence. 6. It is vehemently urged by the counsel of the petitioner that there are no allegations against the petitioner as to what role he played in the issuance of cheque and there is no clear averment that he was in charge or responsible for the day to day affairs of the company, It was further submitted that summoning order has far reaching consequences and the impugned order suffers from complete non-application of mind. In his submissions, learned counsel has place reliance upon: a. Sudeep Jain vs. ECE Industries 201 (2013) Delhi Law Times 461 b. National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal Anr (2010) 3 SC 330 c. Sunil Bharti Mittal versus CBI (2015) 4 SCC 609 d. Milind Shripad Chandurkar vs. Kalim M. Khan Anr.: (2011) 4 SCC 275 7. On the other hand, it is argued by the Ld. Counsel for Respondent No. 2 that International Trenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences. It is seen in many cases that the petitioners with malafide intentions 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 N.I. Act and the Cr.P.C, 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 an accused, as to why he should not be tried under Section 138 of the N.I. Act. This plea, as to why he should not be tried under Section 138 of the N.I. Act is to be raised by the accused before the Court of the Metropolitan Magistrate under Section 251 of the Cr.P.C. under Section 263(g) of the Cr.P.C. Along with this plea, he can file necessary documents and also make an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were enacted by the Parliament with the aim of expediting trial in such cases. The provisions of summary trial enable the respondent to lead defense evidence by way of affidavits and documents. Thus, an accused who considers that he has a tenable defense 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 defense evidence and if he is so advised, he can also file an application for recalling any of the witnesses for cross examination on the defense taken by him. 14. In view of the procedure prescribed under the Cr.P.C, if the accused appears after service of summons, the learned Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during trial and 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 under Section 145(2) of N.I. Act for recalling a witness for crossexamination on by an accused 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately a question of fact and no fixed formula can be fired for the same . In the cited case it was weighed in the mind of the court that accused persons were from same family and running the affairs of the accused company which is exactly the position in the instant case. 17. Further, prima facie it appears that even in the reply by the accused persons dated 27.08.2019, there was no specific denial about the role attributed to the accused Sumit Bhasin in the negotiations and transactions that were effected with the complainant. The deal with the complainant was not a trivial or a routine case of marketing, sale or purchase of goods or services. At the cost of repetition, when such a huge investment was being sought from the complainant and applied for the running of the affairs of the company, it is not fathomable that the accused persons were unaware of the financial implications for themselves and for the accused company. 18. Now, coming to the jurisdiction, suffice it to say that the Court, in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of this Court under Section 482 Cr.P.C. at this stage. More so, the defence raised the petitioners in the petition requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.P.C. 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 . 23. 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. Though invariably the initial phase of a litigation under Section 138 of the N.I. Act depends on how well the pleadings or the allegations are laid down or articulated, by the complaint, in the ultimate analysis it is the trial that alone can bring out the truth so as to arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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