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TMI Blog2023 (12) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... fence 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. 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. 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 NI Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case titled Strabag Engineers Private Limited Vs. Dynamic Aura LLP in the interest of justice. 2. The complainant (respondent no. 2 herein) had instituted a complaint under Section 138 read with Section 142 of Negotiable Instruments Act, 1881 against the present petitioners in respect of non-payment against one dishonoured cheque for the amount of Rs. 50,00,000/- issued by petitioners in favour of the respondent no. 2. 3. The Metropolitan Magistrate vide Order dated 16.03.2023 issued summons under Section 138 of Negotiable Instruments Act, 1881 requiring the petitioners to attend the Court. 4. The petitioners 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 petitioners that the Ld. Trial Court failed to appreciate that no complaint is made out on the basis of a technically defective legal demand notice as no cause of action arises against the said drawers of cheques. He further submitted that the order of cognizance against the petitioners dated 16.03.2023 is illegal and improper and the same deserves to be quashed owing to non-compliance of statutory provision m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. This plea, as to why he should not be tried under Section 138 of the NI 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. Along with this plea, he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of the NI Act to recall the complainant to cross-examine 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. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 NI Act for recalling a witness for cross-examination on plea 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 evidence on record and allow cross examination of defence witnesses by complainant. 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 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. 12. Upon analyzing the provisions of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod. Fm1her, the court has examined the documents filed by the complainant and is satisfied with regard to sufficiency of grounds to proceed against the accused as prescribed u/s 202 Cr.P.C. All the statutory requirements under the N.I. Act are complied with. Following the law laid down in A.C. Narayanan Vs. State of Maharashtra (2014) 11 SCC 809, complaint, affidavit of evidence and other annexed documents considered. Accordingly, the formal recording of pre-summoning evidence stands dispensed with. After perusal of the entire record, the court is of the considered opinion that prima facie a case punishable u/s 138 N.I. Act, 1881 is made out against accused No. 1 M/s. Dyanamic Aura LLP, accused No. 2 Navneet Maheshwari and accused No. 3 Sudhir Mandal. 16. Accordingly, no ground for quashing of the proceedings/complaint/order of cognizance/order of summoning dated 16.03.2023 against the petitioners from the Complaint Case No. C.C. N1 ACT 6887/2022 is made out and I also find 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 petitioners in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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