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TMI Blog2023 (11) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... NI Act is presumed to be in discharge of a legally enforceable debt or other liability. The aforesaid presumption is rebuttable and the accused can rebut this presumption by leading evidence in this regard. Therefore, the contention of the Accused that a legally enforceable debt has not accrued in favour of the Complainant on account of non-fulfilment of the conditions in the Agreement would have to be proved by leading evidence at the time of trial. The learned MM is not required to go into this evidence while conducting an inquiry under Section 202 of the CrPC - At the stage of issuance of summons, for the purpose of Section 202 of the CrPC read with section 145 of the NI Act, the learned MM is only required to examine whether the basic ingredients of an offence under Section 138 of the NI Act have been prima facie made out by the complainant and supported by the pre-summoning evidence led on behalf of the complainant. Upon dishonour, statutory notice under Section 138 of the NI Act had been duly issued by the Complainant to the Accused and the Accused failed to make the payment within fifteen days of the receipt of the notice - both the summoning orders issued by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is hereby set aside . 7. The present case is remanded back with directions to the Ld. Trial Court to conduct the mandatory inquiry u/s. 202 CrPC for ascertaining whether all the ingredients of the offence punishable u/s. 138 NI Act including issuance of the cheque in question by the petitioner in discharge of his lawful liability are satisfied or not. In the said inquiry, the ld. Trial Court shall properly appreciate the Share Sale and Purchase Agreement dated 27.09.2019 between the parties to ascertain if the amount of the cheque in question has become lawfully due and payable by the petitioner to the respondent towards the sale price of the shares and whether pre-requisites for the transfer of the said shares, as contained in the said agreement, have been complied by the respective parties. 3. CRL.M.C. 4141/2023 has been filed by the petitioner/accused Sushil Chaudhary (hereinafter Accused ), seeking quashing of the order dated 27th January, 2020 passed by the learned MM, whereby the Accused has been summoned in CC No. 886/2020 filed by the Complainant under Section 138 of the NI Act on the ground that the mandatory inquiry under Section 202 of the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided 10. Reference may also be made to Section 145 of the NI Act: 145. Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of summons to the Accused. 15. At this stage, reference may be made to the summoning orders passed by the learned MM in both the subject complaints. The summoning order in CC No. 380/2020 in CRL. M.C. 2480/2023 is set out below: Pre-summoning Complainant's Evidence recorded. Documents exhibited. Arguments heard on the summoning aspect. This Court has perused the record of the case file. The accused has issued a cheque in favour of the complainant towards discharge of his liability which was returned unpaid as dishonoured vide cheque return memo. Thereafter, the legal notice of demand was issued by the complainant. However, the accused has failed to pay the cheque amount within 15 days of the receipt of the aforesaid legal notice. Hence, the present complaint has been filed. There is sufficient material available on record to summon the accused. Therefore, a prima-facie case punishable u/s 138 Negotiable Instruments Act, 1881 is made out against the accused. This Court, therefore, takes cognizance of offence u/s 138 Negotiable Instruments Act, 1881. Issue summons on the accused on filing of PF RC/speed post as well as through all perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complainant on account of non-fulfilment of the conditions in the Agreement would have to be proved by leading evidence at the time of trial. The learned MM is not required to go into this evidence while conducting an inquiry under Section 202 of the CrPC. 20. At the stage of issuance of summons, for the purpose of Section 202 of the CrPC read with section 145 of the NI Act, the learned MM is only required to examine whether the basic ingredients of an offence under Section 138 of the NI Act have been prima facie made out by the complainant and supported by the pre-summoning evidence led on behalf of the complainant. 21. In both the present cases, the complaints disclose a debt. The learned MM on the basis of the complaints and the pre-summoning evidence led on behalf of the Complainant has observed that; a cheque was issued by the Accused to the Complainant; and the aforesaid cheque was dishonoured. Further, upon dishonour, statutory notice under Section 138 of the NI Act had been duly issued by the Complainant to the Accused and the Accused failed to make the payment within fifteen days of the receipt of the notice. In my considered view, both the summoning orders issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of legally enforceable debt or liability. However, there can be no doubt that at the time of filing of complaint there was always initial presumption which would be in favour of the complainant. We are in full agreement with the opinion of the High Court expressed in the above noted paragraphs which has been referred by the learned counsel for the appellant. It is well settled that the rebuttal can be made with reference to the evidence of the prosecution as well as of defence. 23. The aforesaid observations of the Supreme Court are fully applicable in the present case. 24. Further, it cannot be accepted that just because the summoning order of the MM does not make specific reference to Section 202 of the CrPC, that an inquiry as contemplated in the aforesaid provision has not been conducted by the learned MM. 25. In view of the discussion above, I am of the considered view that in both the complaint cases, the learned MM has duly conducted the necessary inquiry under Section 202 of the CrPC before issuance of summons to the Accused. 26. If the contention of the Accused is accepted that the MM has to conduct an inquiry by appreciating the terms and condi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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