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TMI Blog2023 (7) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 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.PC under Section 263(g) of the Cr.PC. In view of the procedure prescribed under the Cr.PC, 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 by an accused under Section 145(2) of N.I. Act for recalling a witness for cross-examination on plea 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. PC., if not already taken, and enter his/her plea of defence before the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Complaint Case No. 527/2022 under section 138 of the Negotiable Instruments Act, 1881 against the petitioners in respect of non-payment against one dishonored cheque for the amount of Rs. 1,41,10,643/- issued by the petitioners in favour of the respondent. 3. The Metropolitan Magistrate vide order dated 19.07.2022 in Complaint Case No. 4629/2022 and vide order dated 28.04.2022 in Complaint Case No. 527/2022 issued summons requiring the petitioners to attend the Court. 4. The petitioners being aggrieved filed the present petitions invoking jurisdiction of this Court under Section 482 Cr.P.C. 5. It has been mainly argued by the Ld. Counsel for the petitioners that the complaints filed by the complainant board under Section 138 of Negotiable Instruments Act, 1881 against the petitioners are false and frivolous. He submitted that the petitioners cannot be held to be vicariously liable for the alleged offence as they were only nominee and non-executive directors of M/s Sure Waves MediaTech Private Limited (SMPL) at the relevant time when the offence was committed and they were neither in charge of the conduct of business of SMPL nor the day to day affairs of SMPL. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the loan was taken by the accused company from the respondent after petitioner no 3 became the executive director. It is pointed out by the learned counsel for the respondent that the petitioners have in suppression of earlier DIR 12 s filed with the Ministry of Corporate Affairs, have along with the present petition filed a Form DIR 12 wherein it has been alleged that the said DIR 12 was filed in 2021 and as per the said DIR 12 the petitioners have allegedly become nonexecutive directors in 2021 itself, however, it is pertinent to mention that the said alleged E-Form DIR 12 is a dummy document filed on 13.07.2022 and from the petitioner s latest DIR 12 filed in 2022 it is evident that prior to filing of the said E-form the said petitioners were not non-executive directors. She further submitted that the complaint cases were filed prior to filing of the E-Form DIR 12 dated 13.07.2022 and the same has been filed only after the complaints were lodged. She further submitted that till date the accused company has not made a single payment of the loan instalment of the loan availed by it from the respondent board and as on date, the company along with petitioners owe an amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity 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 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 N.I. 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 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.PC under Section 263(g) of the Cr.PC. 11. The offence under Section 138 of the N.I. Act is an offence in the personal nature of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. Moreover, as far as the contention of the Ld. Counsel for the petitioners that the petitioners were only nominee and nonexecutive directors of M/s Sure Waves MediaTech Private Limited (SMPL) at the relevant time when the offence was committed and were neither in charge of the conduct of business nor involved in the day to day affairs of SMPL, does not cut much ice as perusal of Form No. MGT-7 nowhere shows that the petitioners were non-executive directors and E-Form DIR 12 also reveals that there was no change in directors of M/s Sure Waves MediaTech Private Limited in 2021 as well as in 2022 and the petitioners were only nominee directors of SMPL. Furthermore, the petitioners have been categorically mentioned as 'Directors of M/s Sure Waves MediaTech Private Limited' in the Complaint Case No. 4629/2022 and Complain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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