9911796707
TMI Blog2022 (4) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... is a proprietorship and is a civil and structural contractor carrying on its business in various states of the country. The petitioner and the respondent entered into an agreement dated 17.01.2019 whereby petitioner agreed to hire shuttering and scaffolding material from the respondent initially for a period of six months. As per the Clause 5 of this Agreement, the petitioner was required to provide undated security cheque to the respondent to cover full value of the material supply. On the same day, i.e., 17.01.2019, petitioner sent an email to the respondent conveying the material required. In response, respondent reverted back an email to the petitioner conveying the calculation of advanced amount payable by the petitioner and also the amount to be paid through security cheques. The email further reveals that the amount that was to be paid to the respondent is Rs. 2,63,700/- as an advance payment and further security cheques of Rs. 77,41,000/- as security. After some negotiations, respondent agreed to accept Rs. 63,00,000/- as security cheques instead of Rs. 77,41,000/-. Accordingly, the petitioner prepared 5 undated cheques totaling to amount of Rs. 63,00,000/- and one current ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directors has authorized him. However, in the present complaint, he has been shown as the partner of the respondent and two partners have authorized him to file the complaint, hence, two authorization is not correct. 5. Now coming to the legal position in this case and taking into consideration the various provisions of Cr.P.C. which have been discussed in various judgments time and again demonstrate that the Negotiable Instruments Act, provides sufficient opportunity to a person who issues the cheque. Once a cheque is issued by a person, it must be honored and if it is not honored, the person is given 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the cheque in question, it is he alone who knows the defense and responsibility of spelling out this defense to the Court and then proving this defense is on the accused. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonor of cheque, issuance of demand notices etc., he can be cross-examined only if the accused makes an application to the Court as to, on what point he wants to cross examine the witness (es) and then only the Court shall recall the witness by recording reasons thereto. 8. Sections 143 and 145 of the N.I. 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 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. 9. In view of the procedure prescribed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 N.I. 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.P.C, 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 the trial of offences under Chapter XVII of the Negotiable Instruments Act and sections143 to 147 were inserted in the Act by the Negotiable Instruments Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
