CRL. M.A. 1108/2020
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL.M.C. 254/2020 & CRL. M.A. 1107/2020
1. The petitioners have filed the present petition under Section 482 of the Cr.P.C. with the following prayer:
(a) Call for the record of CC No. 16819 of 2017.
(b) Quash the Complaint No. 16819 of 2017 for the reasons set out in the present petition.
(c) Set aside the impugned order dated 25.10.2019 passed by the learned ASJ, Patiala House in Criminal Revision Case 230/2019.
(d) Set aside the order dated 19.12.2017 passed by learned MM- 4/PHC Patiala House in CC No. 16819 of 2017.
2. The respondent herein had instituted a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act 1881 against the petitioners herein in respect of non-payment against the eleven dishonoured cheques for the total amount of Rs. 19,00,00,000/- (Rupees Nineteen crores only) issued on behalf of and by petitioner company in favour of the respondent company.
3. The Metropolitan Magistrate vide his order dated 19.12.2017 held as follows:
“From perusal of complaint and documents attached, prima facie offence under Section 138 r/w Section 141 of NI Act, 1881 is made out. Accordingly, cognizance of offence is taken.
CW-01 AR of complainant, Sh. Manav Arora has tendered pre-summoning evidence by way of affidavit. At the request of AR of complainant, PSE is closed.
Heard on issuance of process.
Material on record suggest sufficient ground to proceed further. Accordingly, issue summon to the accused, subject to filing PF/RC within thirty days from today. Summons be sent for service through all permissible modes.
Put up for further proceeding on 25.9.2018.”
4. The petitioners feeling aggrieved invoked the revisional jurisdiction of the Court of Sessions and questioned the correctness, legality and proprietary of the said order. But their criminal revision petition bearing No. 230/2019 was dismissed by the learned A.S.J. vide impugned order dated 25.10.2019 which is now challenged by the petitioners, invoking jurisdiction of this Court under Section 482 Cr.P.C.
5. The main 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) SumanSethi v. Ajay K. Churiwal and Anr., (Supreme Court 2000) I (2000) SLT 605=II (2001) BC 144 (SC)=AIR 2000 SC 828 (Para 6 & 8)
(b) K.R. Indira v. Dr. G. Adinarayana (Supreme Court 2003) VI (2003) SLT 330=III (2005) BC 384 (SC)=AIR 2003 SC 4689 (para 7-11)
(c) M/s Rahul Builders v. M/s Arihant Fertilizers &Anr. (Supreme Court 2007) IV (2009) BC 218 (SC)=(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 under Section 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 of them.”
7. In Rajinder Prasad v. Bashir, VI (2001) SLT 653=IV (2004) CCR 60 (SC)=(2001) 8 SCC 522, the Supreme Court referring to its earlier decision in Krishnan v. Krishnaveni, 1997 (SLT SOFT) 1336=(1997) 4 SCC 241 held that:
“...though the power of the High Court under Section 482 of the Code is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, "Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code.”
8. In Kailash Verma v. Punjab State Civil Supplies Corporation &Anr., I (2005) SLT 525=(2005) 2 SCC 571, the Supreme Court observed thus:
“5. It may also be noticed that this Court in Rajathi v. C. Ganesan, (1999) 6 SCC 326 : 1999 SCC (Cri) 1118, said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court.”
9. The arguments of the learned Counsel for the petitioners that notice is confusing qua the amount claimed and there is an ambiguity, in my opinion, the learned 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 cheuqe 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 learned 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 v. State &Anr., I (2012) DLT (CRL.) 998=ILR (2012) 3 Del 99, accepted such objections in another similarly placed petition under Section 482, Cr.P.C. 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 under Section 82 (sic) Cr.P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision Court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case, but as to whether the impugned order bring about a situation which is an abuse of process of Court or there was serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional Court. Reference in this regard can be made to the judgments of the Supreme Court in MadhuLimave v. State of Maharashtra, (1977) 4 SCC 551; State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305 : AIR 1979 SC 87; Rai Kapoor v. State (Delhi Administration), 1980 Cri. L.J. 202; Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571.”
11. Now coming to the other 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 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 honoured and if it is not honoured, 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 with mala fide intention 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 NI 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 High Court 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 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 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 NI 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 makes 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
13. The offence under Section 138 of the NI 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 defence and the burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the Court and then proving this defence is on the accused. Once the complainant has brought forward his case by giving his affidavit about the issuance of 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.
14. 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.
15. 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.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 under Section 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 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 offence as well as the conditions required to be fulfilled before initiating the prosecution.
17. 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 NI Act and Section 27 of the General Clauses Act, 1897 as well as the provisions of Section 146 of the Act.
18. 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. Bank Ltd. v. Nimesh B. Thakore, I (2010) DLT (CRL.) 150 (SC)=I (2010) SLT 133=I (2010) BC 600 (SC)=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 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all th
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e 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.” 19. 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. 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.P.C. at this stage. More so, 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. 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 defence of the petitioners in accordance with law. 21. The prayers are untenable in law. Hence, this Court does not deem it appropriate to issue notice to the respondent. Accordingly, the petition is dismissed and CRL. M.A. 1107/2020 is also disposed of accordingly. Petition dismissed.