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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajnish Bhatnagar, J.
Maa Tarini Industries Ltd. & Anr. - Appellant
Versus
PEC Limited - Respondent
Crl.M.C. 254/2020
Decided On : 20-01-2020
Exemption - Negotiable Instruments Act - 138, 142 - 138, 141, 397(3), 482 Cr.P.C. - The court discussed the provisions of the Negotiable Instruments Act, 1881, particularly sections 138 and 142, and the limitations on invoking revisional jurisdiction under section 397(3) and inherent powers under section 482 of the Cr.P.C. The court emphasized the technical nature of the offence under section 138 and the inbuilt defences available to the accused. It highlighted the summary trial procedure and the burden of proof on the accused, as well as the special code for trial under the NI Act, overriding the provisions of the Cr.PC. The court also emphasized the limited scope of invoking section 482 Cr.P.C. and the need for sterling evidence to warrant its invocation.
Fact of the Case:
The respondent filed a complaint under section 138 of the Negotiable Instruments Act against the petitioners for non-payment against dishonoured cheques. The petitioners challenged the orders of the Metropolitan Magistrate and the Court of Sessions, seeking quashing of the complaint.
Finding of the Court:
The court found that the notice issued by the respondent was not defective, and the petitioners' reliance on certain judgments was not applicable to the present case. It emphasized the technical nature of the offence under section 138 and the inbuilt defences available to the accused. The court also highlighted the summary trial procedure and the burden of proof on the accused, as well as the special code for trial under the NI Act, overriding the provisions of the Cr.PC. The court dismissed the petition and disposed of the application.
Issues: The issues revolved around the validity of the notice, the applicability of certain judgments, the limitations on invoking revisional jurisdiction, and the scope of invoking section 482 Cr.P.C.
Ratio Decidendi: The court emphasized the technical nature of the offence under section 138 and the inbuilt defences available to the accused. It highlighted the summary trial procedure and the burden of proof on the accused, as well as the special code for trial under the NI Act, overriding the provisions of the Cr.PC. The court also emphasized the limited scope of invoking section 482 Cr.P.C. and the need for sterling evidence to warrant its invocation.
Final Decision: The petition was dismissed, and the application was disposed of accordingly.
JUDGMENT
1. Exemption allowed, subject to all just exceptions.
The application stands disposed of. CRL.M.C. 254/2020 & CRL. M.A. 1107/20201. The petitioners have filed the present petition u/s 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 Ld. ASJ, Patiala House in Criminal Revision Case 230/2019.
(d) Set aside the order dated 19.12.2017 passed by Ld. 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 U/s 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 25.09.2018."
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.
5. But their criminal revision petition bearing No. 230/2019 was dismissed by the Ld. A.S.J. vide impugned order dated 25.10.2019 which is now challenged by the petitioners, invoking jurisdiction of this Court U/s 482 Cr.P.C.
6. 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. Suman Sethi Vs. Ajay K. Churiwal and Anr. (Supreme Court 2000) AIR 2000 SC 828 (Para 6 & 8)
b K.R. Indira V Dr. G. Adinarayana (Supreme Court 2003) AIR 2003 SC 4689 (para 7-11)
c. M/s Rahul Builders V M/s Arihant Fertilizers & Anr. (Supreme Court 2007) (2008) 2 SCC 321 (Para 11-12) Cr.P.C as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred U/s 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 Vs. Bashir, (2001) 8 SCC 522 , the Supreme Court referring to its earlier decision in Krishnan Vs. Krishnaveni, (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
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