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TMI Blog2020 (1) TMI 1674X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 parameters of the jurisdiction of the High Court, in exercising jurisdiction under Section 482 Cr.P.C., are now almost well-settled. Although it has wide amplitude, but a great deal of caution is also required in its exercise. The requirement is, the application of well known legal principles involved in each and every matter - the defence as raised by the petitioners in the petition requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.P.C. The petitioners, therefore, cannot be allowed to take recourse to section 482 Cr.P.C. as a substitute for initiating second revision petition when there is nothing to show that there is serious miscarriage of justice or abuse of the process of law. There are 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 with law - appeal disposed off. - HON'BLE JUDGES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thrust of the arguments of the counsel for the petitioners is that the notice issued on 2 March, 2017 is defective as the demand has been made over and above the cheque amount and the legal demand notice is vague and ambiguous, so the notice being defective, the complaint is liable to be dismissed. He has relied upon: a. Suman Sethi V. Ajay K. Churiwal and Anr. (Supreme Court 2000) AIR 2000 SC 828 (Para 6 8) b K.R. Indira V Dr. G. Adinarayana (Supreme Court 2003): AIR 2003 SC 4689 (para 7-11) c. M/s. Rahul Builders V M/s. Arihant Fertilizers Anr. (Supreme Court 2007) (2008) 2 SCC 321 (Para 11-12) 6. Before proceeding to consider the contentions of the petitioners, a procedural issue has arisen, as to whether the petitioners having availed of the remedy of revision should be allowed to take recourse to section 482 Cr.P.C. as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred U/s. 397 (3) Cr.P.C. which reads as follows: (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, the Ld. revisional Court has rightly held that notice is to be read as a whole. The perusal of the notice clearly set out the details of the cheque which have been dishonoured, so it cannot be said that the demand made is ambiguous or in any way confusing the petitioners as there is no denial that the cheque in question were not issued or that they were not dishonoured for insufficient funds. There is no dispute with regard to the propositions of law laid down in the judgments supras relied upon by the Ld. counsel for the petitioners but with due regards, the same are not applicable to the facts of the present case. 10. A learned single judge of this court in Surender Kumar Jain vs. State Anr., ILR (2012) 3 Del 99 accepted such objections in another similarly placed petition under Section 482 Cr. PC observing thus:- 5. The issue regarding filing of petition before the High Court after having availed first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid statutory bar of second revision petition, the courts have held that High Court did enjoy inherent power u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.P.C. under Section 263(g) of the Cr.P.C. 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. 12. 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., the onus of proving these defences is on the accused alone, in view of Section 106 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to furnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. 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. 16. Upon analyzing the provisions of the NI Act, it is clear that Section 138 of the Act spells out the ingredients of the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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