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2011(2) Bankmann 16 (Del.)
DELHI HIGH COURT
Shiv Narayan Dhingra, J.
Rajesh Agarwal —Petitioner
versus
State & Anr. —Respondents
Criminal M.C. No. 1996 of 2010 & M.A. No. 7672 of 2010
Decided on 28.07.2010
(ii) Criminal Procedure Code, 1973—Sections 260 to 265—Negotiable Instruments Act, 1881—Section 145—Dishonour of cheque—Summary trial— Along with complaint under section 138 complainant should file affidavit of his evidence and all necessary documents like dishonour memo, returned cheque, notice of demand and then MM should scrutinize complaint and document and if he finds that affidavit and documents disclose dishonour of cheque issued by accused, issuance of a demand notice by complainant, non-payment of cheque amount by accused despite notice, cheque return memo of bank etc. and if court finds that complaint was filed within period of limitation, cognizance is to be taken. (Paras 7 to 9)
(iii)Negotiable Instruments Act, 1881—Sections 138 and 145—Evidence Act, 1872—Section 106—Constitution of India—Article 21—Dishonour of cheque—Since offence under section 138 is technical in nature and defence which accused can take are inbuilt, onus of proving these defences is on accused alone— Evidence already given by complainant by way of affidavit is sufficient proof of offence and this evidence is not required to be given again in terms of section 145(1) and has to be read during trial. (Para 9)
(iv)Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 311—Dishonour of cheque—Complainant or other witnesses can be recalled only when accused makes application and this application must disclose reason why accused wants to recall witnesses and on what point witness is to be cross examined—There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent—If accused has defence against dishonour of cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to court and then proving this defences is on accused. (Para 9)
(v)Negotiable Instruments Act, 1881—Sections 138 and 145—Dishonour of cheque—In all cases under section 138, once evidence is given by way of affidavit, at the stage of pre-summoning, same evidence is to be read by court at post summoning stage and witness need not be recalled at post summoning stage unless court, for reasons, considers it necessary—Trial under section 138 cannot be carried like any other summons trial under IPC offences—Documents placed on record of Court about dishonour of cheque are documents from banks and unless accused says that these documents are forged, evidence of complainant about dishonour of cheque cannot be questioned, nor complainant can be asked to depose before court again. (Para 11)
(vi)Negotiable Instruments Act, 1881—Sections 138 and 144—Criminal Procedure Code, 1973—Section 64—Dishonour of cheque—Service of notice—Service by affixation is a valid mode of service under criminal law— Wherever accused is evading his service, court should direct service through affixation as provided under section 65 of Cr .P .C. and in case accused does not appear court is at liberty to take steps for coercive appearance. (Para 13)
(vii)Negotiable Instruments Act, 1881—Sections 138, 143 and 145—Dishonour of cheque—Summary trial—Accused who considers that he .has a tenable defence and case against him was not maintainable, he can enter his plea on very first day of his appearance and file affidavit in his defence evidence—He can also file application for recalling any of witnesses for cross examination on defence taken by him. (Para 15)
Shiv Narayan Dhingra, J. —The above & many more petitions arisen out of the proceedings pending before the Trial Courts under section 138 of Negotiable Instrument Act (N.I. Act) are pending before this Court. It is seen that the High Court is being flooded with petitions under section 482 Cr.P.C. for quashing of complaints under Section 138 N.I. Act on the ground that learned MMs cannot recall their own orders of summoning and it is the High Court that should consider that the complaint under section 138 of N.I. Act was not maintainable against the petitioners. Reliance is placed on Adalat Prasad v. Rooplal Jindal & Ors.1 to press the point that the petitioners have no other alternative but to approach the High Court. While Adalat Prasad case (supra) laid down that if a Magistrate takes cognizance of an offence and issues process, without there being any allegations against the accused or any material implicating the accused, the order of Magistrate may be vitiated, but the relief, an aggrieved accused can obtain at that stage is not by invoking Section 207 of Cr. P.C. The remedy lies in invoking section 482 Cr.P.C. It is clear from the Judgment of Adalat Prasad case (supra) that Section 482 of Cr .P .C. can be resorted to only where the High Court is called upon to examine the complaint and material available before the Trial Court at the time of summoning per se to arrive at a conclusion that no case was made out against the petitioner/accused. However, in all the petitions pending before this court and other petitioner flowing before this court daily, the quashing of summoning order is sought not on the ground that complaint and evidence adduced by the complainant before MM do not disclose commission of offence by the petitioner, but, on the ground that petitioner had various defences like the petitioner was not the Director of the company at the time when cheque was issued or when cheque was dishonoured; the petitioner was not responsible for conduct of business of company/ firms, the petitioner was only a sleeping partner in the partnership firm, the issuance of cheque and its dishonour was without the knowledge of the petitioner, that cheque was issued without consideration, the cheque was issued as security, the cheque though issued by the petitioner was not from his own account but from some other account, the petitioner was a Director but had resigned from Directorship at the relevant time etc. Many similar or other defences are raised in these petitions while invoking inherent powers of this Court under section 482 Cr.P.C. The argument advanced in all such cases is that the material & documents in custody of the petitioner show that he was not involved in day-to-day business, but such unimpeachable documents cannot be considered by the court of MM at initial stage and they should be considered by the High Court for quashing the complaint. It is submitted in these petitions that subjecting the petitioner to a long drawn trial would amount to curtailment of liberty of the petitioner and if the petitioner was not involved in the offence why he should be subjected to a long drawn trial.
2. One of the reasons that these petitions are flooding High Court is that the petitioners involved, in most of the cases, are affluent persons who do not wish to appear before the Courts of MM or consider it below their dignity to go to lower court and come rushing to High Court on mere passing of a summoning order and are successful in halting proceedings before the lower court on one or the other ground; while the kind of defences raised by the petitioners are required to be raised before the Court of MM at the very initial stage as per law.
3. The objectives of the proceedings of Section 138 of N.I. Act is that cheques should not be used by persons as a tool of dishonesty and 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 issuan
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