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TMI Blog2024 (2) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in the most casual manner and without disclosing any valid defence. The vague statements cannot be considered a valid defence to grant leave to the Accused to cross-examine the Complainant. The grounds mentioned in the Application have no substance as there is no denial about the loan transaction and hence, there is no question of cross-examining the witness - The ground regarding misuse of the cheque is again not explained in the Application and thus, Application was rejected. The proceedings under Section 138 of the N.I. Act are special proceedings wherein the Complainant is equipped with a presumption in his favour under Section 139 of the N.I. Act when the signature on the cheque is not denied by the Accused. In such a situation, the reverse burden is on the Accused to disprove such presumption though on preponderance of probabilities. It is also well settled by a catena of decisions that in order to dispel the presumption which arises out of Section 139 of the N.I. Act, the Accused either do so by pointing out the defects, discrepancies and inconsistencies in the case of the Complainant by way of cross-examination of the Complainant and his witnesses - the Accused is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Complainant and misconstrued the law laid down by the Apex Court as well as by this Court. Accordingly, he submits that the Application disclosing the grounds of defence need not elaborate on each and every ground for defence. He submits that the procedure requires the Accused to disclose the grounds of his defence which the Petitioner has disclosed. He submits that however, without considering the mandate that once such Application is filed, disclosing specific defence, the Magistrate shall grant such Application by summoning the Complainant, show that impugn order needs interference. 6. Mr. Amonkar placed reliance on the following decisions: (i) Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore, (2010) 3 SCC 83; (ii) Meters and Instruments Pvt. Ltd. Vs. Kanchan Mehta, AIR 2017 SC 4594; (iii) Rakesh Singh Vs. Anil Madanmohan Gulati, (Criminal Writ Petition No. 35 of 2023 decided on 09.05.2023); (iv) Jose Carmo Medard Fernandes Vs. Babu Sheikh (Criminal Writ Petition No.31 of 2023 decided on 28.08.2023); (v) Shantal Kamat Vs. Milind Ladu Kerkar, (Criminal Writ Petition No.227 of 2023 (F) decided on 11.10.2023); (vi) K. Narsimulu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds: a) Misrepresentation of facts. b) No legally enforceable debt/ dues. c) Cheque never issued nor any consideration towards the cheque, misuse of the cheque. d) Complainant is not a holder in due course of the cheque. 12. This Application was opposed by the Respondent and thereafter, the impugned order was passed by the Trial Court observing that so-called defence raised by the Petitioner does not explain or give the details of misrepresentation, misuse of cheque etc. 13. The impugned order shows that the learned Magistrate after considering the objections raised by the Complainant observed in paragraph 5 that such an Application is filed in the most casual manner and without disclosing any valid defence. The vague statements cannot be considered a valid defence to grant leave to the Accused to cross-examine the Complainant. The grounds mentioned in the Application have no substance as there is no denial about the loan transaction and hence, there is no question of cross-examining the witness. Thereafter, the learned Trial Court considered various decisions from paragraph 6 onwards and then finally, in paragraph 11 concluded that there is no explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of various High Courts, it is clear that the conversion by the trial courts of complaints under Section 138 from summary trial to summons trial is being done mechanically without reasons being recorded. The result of such conversion of complaints under Section 138 from summary trial to summons trial has been contributing to the delay in disposal of the cases. Further, the second proviso to Section 143 mandates that the Magistrate has to record an order spelling out the reasons for such conversion. The object of Section 143 of the Act is quick disposal of the complaints under Section 138 by following the procedure prescribed for summary trial under the Code, to the extent possible. The discretion conferred on the Magistrate by the second proviso to Section 143 is to be exercised with due care and caution, after recording reasons for converting the trial of the complaint from summary trial to summons trial. Otherwise, the purpose for which Section 143 of the Act has been introduced would be defeated. We accept the suggestions made by the learned Amici Curiae in consultation with the High Courts. The High Courts may issue practice directions to the Magistrates to record reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notwithstanding anything in the Code of Criminal Procedure, 1973, all offences under this Chapter shall be tried by the Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 of the Code shall, as far as may be, apply to such trials. The proviso to Section 143 of the N.I. Act further contemplates that in case of any conviction in a summary trial under this Section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding five thousand rupees. However, it further provides that when at the commencement of, or in the course of, a summary trial under this Section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, shall record an order to that effect and thereafter, recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code. Thus, the mandate is that all cases under the said Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken in the absence of the Accused. However, the affidavit of the Complainant and/or its witnesses may be read in evidence subject to all just exceptions . 22. Considering the submissions of the parties therein, the Apex Court concluded in paragraphs 33 and 34 that there is no need for the Complainant to further depose what he has stated in the affidavit and the affidavit in evidence could be considered as chief examination of the Complainant and the witnesses. 23. In the case of Meters and Instruments Pvt. Ltd. (supra), the Apex Court was dealing with the aspect of rejection of compounding of an offence under Section 138 of the N.I. Act. The Apex Court after taking into consideration the earlier decisions wherein certain directions were given, observed in paragraphs 18, 19 and 20 as under: 18. From the above discussion the following aspects emerge: 18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is preponderance of probabilities . The same has to be normally tried summarily as per provisions of summary trial under CrPC but with such var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity and the conduct of the accused or any other circumstances. 19. In view of the above, we hold that where the cheque amount with interest and cost as assessed by the court is paid by a specified date, the court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 CrPC. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) CrPC with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances. 20. In every complaint under Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the bank where the accused has an account, such bank, on being required, should furnish such e-mail ID to the payee of the cheque. In every summons issued to the accused, it may be indicated that if the accused deposits the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtailing such rights of the Accused. 27. In the case of Shantal Kamat (supra), the learned Single Judge of this Court while deciding the Criminal Writ Petition considered a similar aspect and found that once an Application is made disclosing some defence, the Court is duty-bound to allow the Application for summoning the Complainant for cross-examination. 28. In the case of Rukmakar @ Bharat Tulshidas Naik (supra), the learned Single Judge of this Court after considering the decision of the Apex Court in various decisions observed that the Accused who wants to contest must be required to disclose specific defence for such contest. 29. In the case of Paresh Bandekar (supra), the learned Single Judge of this Court observed that the Accused after recording his plea must disclose the ground for defence if he wants to contest the matter and such Application cannot be filed after much delay. 30. In the case of Apolonius Francisco Luis (supra), the learned Single Judge of this Court found that a cryptic Application under Section 145(2) without disclosing any specific defence cannot be considered as an Application for recalling the witness. The Court must be satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Act. Thus, the Accused is entitled to rebut such presumption either by showing that the cheque is not issued for legally recoverable debt through the cross-examination of the Complainant or by leading evidence. 33. When the Accused desires to contest the matter, it cannot be always said that the Accused is delaying the trial. It is the right of the Accused to defend himself which cannot be taken away lightly. Though the proceedings are required to be conducted summarily and as per Sections 262 to 265 of Cr.P.C. as provided under Section 143 of the N.I. Act, the legislature protects the Accused by way of filing the Application under Section 145(2) of the N.I. Act either to prove his defence by cross-examining the Complainant or to lead his own evidence to rebut the presumption. 34. The main intention of the legislature incorporated under Section 145(2) of the N.I. Act is to grant an opportunity to the Accused, in desirable cases, wherein he shows or demonstrates before the Magistrate that there is a probable defence which he wants to produce before the Court by way of cross-examination of the Complainant. Such opportunity cannot be taken away from the Accused if he satisfies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the Complainant is allowed since the Trial Court has to decide the matter summarily. 38. In the present matter, the Application filed by the Petitioner/ Accused under Section 145(2) of the N.I. Act discloses the grounds of his defence. The requirement is to file an Application in writing and as held by the Apex Court, the Accused must disclose specific defence for such a contest. If these two conditions are fulfilled, the power of the concerned Magistrate is only to satisfy itself that such grounds are probable grounds of defence and not only the moonshine defence. Thus, the limited scope available to the Magistrate is to ascertain as to whether such defence is probable defence and if so, allow the Application. 39. As discussed earlier in this case, the Petitioner/Accused disclosed probable defence by claiming that the cheque was not issued for legally enforceable debt. If no opportunity is given to cross-examine the Complainant, the Accused would certainly lose his right to rebut the presumption under Section 139 of the N.I. Act. Thus, the impugned order would clearly go to show that inspite of showing some probable defence, the learned Magistrate refused to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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