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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJNISH BHATNAGAR, J.
Mayank Chawla - Petitioner
Versus
State & Ors. - Respondents
Crl.M.C. 1272 of 2020, Crl.M.A. 4913 of 2020, Crl. M.A.4914 of 2020 & Crl. M.A. 4915 of 2020
Decided On : 05-03-2020
NI Act - Quashing of Impugned Order - 138, 141, 142 of NI Act - Summary of Acts and Sections: The court discussed the provisions of the Negotiable Instruments Act, 1881, particularly sections 138, 141, and 142, which deal with the dishonor of cheques and the legal procedures for trial and defense. The court emphasized the technical nature of the offense under Section 138 and the inbuilt defenses available to the accused. It highlighted the summary trial provisions under Sections 143 and 145, which enable the accused to lead defense evidence by way of affidavits and documents. The court also referred to the Supreme Court's interpretation of Sections 142 to 147, which provide a special code for the trial of offenses under Chapter XVII of the NI Act, aiming to expedite the trial process.
Fact of the Case:
The petitioner sought to quash the impugned order summoning him under Section 138 of the Negotiable Instruments Act, 1881, based on the dishonor of a post-dated cheque issued as a security without any liability and privity of contract. The petitioner argued that the trial court failed to consider the apparent alteration on the cheque leaflet.
Finding of the Court:
The court found that the defense raised by the petitioner requires evidence that cannot be evaluated in proceedings under Section 482 of Cr.PC and can only be proved in the court of law. It dismissed the petition and emphasized that the trial court should consider and deal with the contentions and defense of the petitioner in accordance with the law.
Issues: The issues revolved around the quashing of the impugned order summoning the petitioner under Section 138 of the NI Act, the consideration of the defense raised by the petitioner, and the invocation of the jurisdiction of the court under Section 482 of Cr.PC.
Ratio Decidendi: The court's decision was based on the finding that the defense raised by the petitioner requires evidence that cannot be appreciated, evaluated, or adjudged in the proceedings under Section 482 of Cr.PC and can only be proved in the court of law. It emphasized that the trial court should consider and deal with the contentions and defense of the petitioner in accordance with the law.
Final Decision: The petition was dismissed, and the court did not find any flaw or infirmity in the proceedings pending before the trial court. It emphasized that the trial court should consider and deal with the contentions and defense of the petitioner in accordance with the law.
JUDGMENT :
RAJNISH BHATNAGAR, J.
CRL. M.A. 4914/2020
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL. M.A. 4915/2020
Heard on the application. In the facts and circumstances as mentioned in the application, the application is allowed and the delay is condoned. The application is disposed of accordingly.
CRL.M.C. 1272/2020 & CRL.M.A. 4913/2020
1. The petitioner has filed the present petition u/s 482 of the Cr.P.C. with the prayer to quash the impugned order dated 19.11.2018 passed by the Ld. MM-03 NI Act/SE/ND District Courts, Saket in criminal complaint bearing No. 7727/2018 titled as "Vipin Kumar Singh Vs. Mayank Chawla & Anr." and other consequential proceedings arising out of and related to the same.
2. The respondent No. 2 herein had instituted a complaint under section 138 read with sections 141/142 of the Negotiable Instruments Act, 1881 against the petitioner herein and M/s Skytech Constructions Pvt. Ltd. through its Director Sh. R.K. Chawla in respect of non-payment against one dishonoured cheque for the amount of Rs. 50,00,000/- issued by petitioner in favour of respondent No. 2.
3. The Metropolitan Magistrate vide impugned order dated 19.11.2018 summoned the petitioner U/s 138 NI Act.
4. The petitioner feeling aggrieved, filed the present petition invoking jurisdiction of this Court U/s 482 Cr.P.C.
5. It has been mainly argued by the Ld. counsel for the petitioner that the cheque in question was a post dated cheque which was issued as a security cheque without any liability and privity of contract between the petitioner and respondent No. 2. It is further argued that there is alteration over the leaflet of the cheque in question which was very much apparent but the Ld. trial Court has failed to consider the same.
6. Now coming to the legal position in this case and taking into consideration the various provisions of Cr.PC 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 malafide 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.PC, 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.PC & under Section 263(g) of the Cr.PC. 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. 7. 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 defence
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