Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15.11.2021
+ CRL. M.C. 2857/2021
JIGNESH KUMAR ..... Petitioner
Through: Mr. Yashvardhan, Ms. Smita Kant
and ms. Kritika Nagpa, Advocates.
versus
M/s. ESTER INDUSTRIES LTD. & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
RAJNISH BHATNAGAR J. (ORAL)
CRL. M.A. No. 17982/2021 (for exemption)
Exemption allowed, subject to just exceptions.
The application stands disposed of.
CRL. M.C. 2857/2021 &CRL M.A. 17981/2021 (for stay)
1. The present petition U/s 482 Cr.P.C. has been filed by the petitioner
with the following prayers:
a) Call for the records of Complaint Case No. 17074/2018 under
Section 138 read with Section 142 of the Negotiable Instruments Act,
1881 filed by the Respondent no. 1 pending before the Ld. Court of
Chief Metropolitan Magistrate, Patiala House Court, New Delhi;
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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b) Quash the Summoning Order dated 12.12.2018 issued by the Ld.
Court of Ms. Vijeta Singh Rawat, Patiala House Court, New Delhi
under sections 138 and 142, Negotiable Instruments Act, 1881 qua
the Petitioner;
c) Quash the Complaint Case No. 17074/2018 filed under Section 138
read with Section 142 of the Negotiable Instruments Act, 1881
pending before the Court of Chief Metropolitan Magistrate, Patiala
House Court, New Delhi qua the Petitioner Herein.
2. The brief facts of the case are that the Accused No. 1 M/s.lndu
Polymers, is a Partnership Firm and is represented by its partners Accused
No. 2 V.V. Satyanarayana and accused No. 3 Jignesh Kumar (Petitioner
herein). The Accused No. 2 and 3 approached the Complainant/Respondent
no.2 for purchase of Polyester PBT Chips, and Polycarbonates and requested
the complainant to supply the said materials to the Accused. The accused in
order to partly liquidate the outstanding amount and towards the legally
enforceable debt, which has been due and payable to the complainant, issued
the following four cheques in tune of Rs 12,00,000/-:
a. Cheque bearing No.001004 dt.30-9-2014 for Rs.3,00,000/-and
drawn on City Union Bank, Ranigunj, Secunderabad.
b. Cheque bearing No.001003 dt.30-10-2014 for Rs.3,00,000/-and
drawn on City Union Bank, Ranigunj, Secunderabad.
c. Cheque bearing No.001005 dt.30-10-2014 for Rs.3,00,000/-and
drawn on City Union Bank, Ranigunj, Secunderabad.
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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d. Cheque bearing No.001006 dt.30-9-2014 for Rs.3,00,000/-and
drawn on City Union Bank, Ranigunj, Secunderabad.
3. The said four cheques on presentation were dishonored with remarks
“Contact Drawer/ Refer to Drawer”on 30.10.2014 and 01.11.2014
respectively.
4. On 24.11.2014, Respondent No 2 served a legal notice dt. 24.11.2014
upon the accused persons, which was duly served upon them and even
replied through their counsel vide reply dated 18.12.2014, but since no
payment was made under the cheque, the complaint was filed on 31.12.2014
by respondent no. 2/Complainant.
5. The Petitioner has assailed the Summoning Order dated 12.12.2018
vide which he was summoned by the Ld.MM for offences U/s 138 and 142
of the N.I. Act.
6. It is vehemently urged by the Ld. counsel for the petitioner that there
are no allegations against the petitioner and though he was a partner in the
respondent no. 2 firm, but was neither into day-to-day affairs of the
partnership firm nor has any knowledge about the alleged transaction of the
business of partnership firm. It is further submitted that the present
petitioner is not a signatory to the cheques in question and the said cheques
were issued by other Managing Partners.
Ld. Counsel for the petitioner has placed reliance on the following
judgments:
Katta Sujatha v. Fertilizers and Chemicals Travancore Ltd.
And Anr. [(2002) 7 SCC 655]
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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K. Srikanth Singh v. North East Securities Ltd. And Anr
[(2007) 12 SCC 788]
Smt. Meenu Goyal v. M/S Micromax Informatics Ltd. &Ors.
[2021 (276) DLT 80]
MonabenKetanbhai Shah and Ors. v. State of Gujarat and
Ors. [AIR 2004 SC 4274]
Sham Sunder v. State of Haryana [(1989) 4 SCC 630]
Pooja Ravinder Devidasani v. State of Maharashtra and Anr.
[(2015) 3 SCC (Cri) 378]
Sabitha Ramamurthy v. R.B.S.Channabasavaradhya [Sabitha
Ramamurthy v. R.B.S. Channabasavaradhya, (2006) 10 SCC
581 : (2007) SCC (Cri) 621]
7. As far as the judgments relied upon by the Ld. Counsel for the
petitioner are concerned, there is no dispute with regard to the proposition of
law laid down in the said judgments, but with due regard, the same are not
applicable to the facts of the present case.
8. Now coming to the legal position in this case and taking into
consideration the various provisions of Cr.P.C. which have been discussed
in various judgments time and again and demonstrate that the Negotiable
Instruments Act, provides sufficient opportunity to a person who issues the
cheque. Once a cheque is issued by a person, it must be honored and if it is
not honored, the person is given an opportunity to pay the cheque amount by
issuance of a notice and if he still does not pay, he is bound to face the
criminal trial and consequences. It is seen in many cases that the petitioners
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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with malafide intentions and to prolong the litigation raise false and
frivolous pleas and in some cases, the petitioners do have genuine defence,
but instead of following due procedure of law, as provided under the N.I.
Act and the Cr.P.C,and further, by misreading of the provisions, such parties
consider that the only option available to them is to approach the HighCourt
and on this, the High 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 an 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.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 N.I. Act to recall the complainant to cross examine him on his
plea of defense. 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.
9. An offence under Section 138 of the N.I. 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/partner at that time, accused was a sleeping partner or a sleeping
Director or that accused was not a signatory of the cheque or cheque was
given as a security etc, etc., the onus of proving these defences is on the
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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accused alone, in view of Section 106 of the Indian Evidence Act, 1872.
Since the mandate of the legislature is the trial of such cases in a summary
manner, the evidence already given by the complainant by way of affidavit
is sufficient proof of the offence and this evidence is not required to be
given again in terms of section 145(1) of the N.I. Act and has to be read
during the trial. The witnesses i.e., the complainant or other witnesses can be
recalled only when the accused make such an application and this
application must disclose the reason why the accused wants to recall the
witnesses and on what point the witnesses are to be cross-examined
10. The offence under Section 138 of the N.I. Act is an offence in the
personal nature of the complainant and since it is within the special
knowledge of the accused as to why he is not to face trial under section 138
N.I. Act, he alone has to take the plea of defense and the burden cannot be
shifted to complainant. There is no presumption that even if an accused fails
to bring out his defense, he is still to be considered innocent. If an accused
has a defense against dishonor of the cheque in question, it is he alone who
knows the defense and responsibility of spelling out this defense to the
Court and then proving this defense is on the accused. Once the complainant
has brought forward his case by giving his affidavit about the issuance of
cheque, dishonor of cheque, issuance of demand notices etc., he canbe 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.
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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11. 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 defense evidence byway of affidavits and
documents. Thus, an accused who considers that he has a tenable defense
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 defense evidence
and if he is so advised, he can also file an application for recalling any of the
witnesses for cross examination on the defense taken by him.
12. In view of the procedure prescribed under the Cr.P.C, 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 under
Section 145(2) of N.I. Act for recalling a witness for cross-examination by
an accused in 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.P.C., 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
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KANT MENDIRATTA
Signing Date:23.12.2021
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complainant witness or any other witnesses, they should do so before the
Court of Metropolitan Magistrate.
13. In the instant case the respondent no. 2/complainant in paragraph (1)
and subsequent paragraphs of his complaint under Section 138 and 142 of
N.I. Act has made specific averments that the Accused No.1 is a Partnership
Firm and is represented by its partners Accused No. 2 and 3. Further, stating
that the Accused No. 2 and 3 approached the Complainant for purchase of
Polyester PBT Chips, and Polycarbonates and requested the complainant to
supply the said materials to the Accused. It is specifically averred that the
Accused had been purchasing the goods from the Complainant from time to
time and invoices were forwarded against the said supplies by the
Complainant and the accused used to make payments, with respect to the
said invoices, which were duly given credit by complainant in their books of
account. However, the Accused in order to partly liquidate the outstanding
amount and towards the legally enforceable debt, which has been due and
payable to the complainant, issued the four cheques, which were dishonored.
The plea raised by the Ld. Counsel for the petitioner that the present
petitioner was only a partner in the respondent no. 2 firm, but was neither
into day-to-day affairs of the partnership firm nor has any knowledge about
the alleged transaction of the business of partnership firm cannot be
considered at this preliminary stage since such defense can only be
considered during the stage of trial.
14. Now, coming to the jurisdiction, suffice it to say that the Court, in
exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth
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KANT MENDIRATTA
Signing Date:23.12.2021
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or otherwise of the allegations made in the complaint or delve into the
disputed question of facts. The issues involving facts raised by the petitioner
by way of defence can be canvassed only by way of evidence before the
Trial Court and the same will have to be adjudicated on merits of the case
and not by way of invoking jurisdiction under Section 482 Cr.P.C. at this
stage.
15. Upon analyzing the provisions of the N.I. Act, it is clear that Section
138 of the Act spells out the ingredients of the offence as well as the
conditions required to be fulfilled before initiating the prosecution.
16. These ingredients and conditions are to be satisfied mainly on the
basis of documentary evidence, keeping in mind the presumptions under
Sections 118 and 139 of the N.I. Act and Section 27 of the General Clauses
Act, 1897 as well as the provisions of Section 146 of the Act.
17. The provisions of Sections 142 to 147 lay down a Special Code for
the trial of offences under the Chapter XVII of the N.I.Act. While
considering the scope and ambit of the amended provisions of the Act, the
Supreme Court in Mandvi Co Op BankLtd v. Nimesh B. Thakore, AIR 2010
SC 1402, has held that 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 Supreme Court has further held
as under:-"17. It is not difficult to see that sections 142 to 147lay down a
kind of a special Code for the trial of offences under Chapter XVII of the
Negotiable Instruments Act and sections143 to 147 were inserted in the Act
by the Negotiable Instruments Amendment and Miscellaneous Provisions)
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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Act, 2002 to do away with all the stages and processes in a regular criminal
trial that normally cause inordinate delay in its conclusion and to make the
trial procedure as expeditious as possible without in any way compromising
on the right of the accused for a fair trial."
18. The parameters of the jurisdiction of the High Court in exercising
jurisdiction under Section 482Cr.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 Adverting back 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.P.C. at this stage. More so,
the defence raised the petitioners in the petition requires evidence, which
cannot be appreciated, evaluated or adjudged in the proceedings under
Section 482 of Cr.P.C. and the same can only be proved in the Court of law.
Reliance can be placed upon "State of Madhya Pradesh Vs. Yogendra Singh
Jadon & Anr"., Criminal Appeal No. 175 of 2020 (Arising out of SLP
(Criminal)No. 172 of 2017) decided by the Hon'ble Supreme Court on
January 31, 2020 in which it has been held that "the power under Section
482 of the Code of Criminal Procedure, 1973 cannot be exercised where the
allegations are required to be proved in Court of law".
19. In the instant case, all these issues mentioned herein above involves
disputed question of facts and law and cannot be decided unless and until the
parties go to trial and lead their respective evidence. Though invariably the
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KANT MENDIRATTA
Signing Date:23.12.2021
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initial phase of a litigation under Section 138 of the N.I. Act depends on
how well the pleadings or the allegations are laid down or articulated, by the
complaint, in the ultimate analysis it is the trial that alone can bring out the
truth so as to arrive at a just and fair decision for the parties concerned.
20. Accordingly, I 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 defense of the petitioner in accordance
with law.
21. The prayers are untenable in law. Hence, this court does not deem it
appropriate to issue notice to the respondents. Accordingly, the petition is
dismissed and CRL M.A. 17981/2021 is also disposed of accordingly.
RAJNISH BHATNAGAR, J
NOVEMBER 15, 2021
a
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:23.12.2021
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