9911796707
TMI Blog2023 (11) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The parameters of the jurisdiction of the High Court, in exercising jurisdiction under Section 482 Cr.PC, 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. Adverting back to the facts of the present case, this Court does not find any material on record which can be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so, the defence as raised by the petitioner in these petitions requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC and the same can only be proved in the Court of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident from the bank statements as well as the ledger account maintained by the petitioner herein during the course of regular business w.e.f. 01.04.2014 to 31.03.2017. Furthermore, he submitted that the cheque was undated and the particulars/Amount has not filled by the petitioner herein, moreover, in the said cheque, the date and amount has been filled in a different hand writing. He further submitted that forged C-Form has been filed to substantiate the case and the petitioner has also filed criminal complaints against the respondent in Office of SSP, Karnal, Haryana and Sales Tax Offices. He further submitted that the respondent has misused the impugned cheque in breach of mutual trust between the parties and the proceedings under Section 138 N.I. Act initiated by the respondent is counter to the Civil Suit, which has been filed by the petitioner against the respondent for the recovery of amounts. He submitted that the respondent is demanding a total sum of Rs. 5,82,217/-which includes Rs. 2,38,602/-against the alleged supply of materials along with Rs. 3,43,613/-towards the interest amount @ 24% p.a, from the date of due till actual realization of said sum, which is totally il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque, dishonour of cheque, issuance of demand notice etc., he can be cross-examined only if the accused makes an application to the Court as to, on what point he wants to cross examine the witness(es) and then only the Court shall recall the witness by recording reasons thereto. 8. Sections 143 and 145 of the N.I. 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. ................... 22. These aspects would prima-facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No. 2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made. The further defence as to whether the loan had been discharged as agreed by respondent No. 2 and in that circumstance the cheque which had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the closure of bank account of M/s Hindustan A.D.V Axle Company in IDBI Bank as well as PNB Bank in June 2021 itself. In my considered opinion, the same does not cut much ice as the Hon'ble Supreme Court has time and again observed that the provisions contained in Section 138 of the NI Act are to be interpreted in a liberal manner so as to achieve the object for which the said provision has been enacted, and not only the cases of dishonour of cheques on account of insufficient funds or exceeding of arrangement but the cases involving dishonour of cheques on accounts of payment stopped and account closed have also been brought within the ambit of offence under the aforesaid provision. Reliance can also be placed upon the judgment of the Hon'ble Supreme Court in NEPC Micon Limited and Others vs. Magma Leasing Limited [(1999) 4 SCC 253]. 15. Furthermore, the contentions of counsel for the petitioner that Section 138 N.I. Act initiated by the respondent is counter to the Civil Suit which has been filed by the petitioner against the respondent for the recovery of amounts and that the amount in question has been duly paid by the petitioner which is evident from the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
