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IN THE HIGH COURT OF DELHI
Rajnish Bhatnagar, J.
GULAM REZA - Appellant
Vs.
ITPL INFRASTRUCTURE PVT. LTD. & ANR - Respondent
CRL.M.C. No. 633/2020
Decided On : 05-02-2020
Section 138 NI Act - Quashing of Summons - Cr.P.C. - [138 NI Act, 420 IPC, 482 Cr.P.C.] - The court discussed the provisions of the Negotiable Instruments Act, the Criminal Procedure Code, and the Indian Penal Code. It highlighted the technical nature of the offence under Section 138 of the NI Act, the inbuilt defences available to the accused, and the summary trial procedure enabling the accused to lead defence evidence by way of affidavits and documents. The court emphasized the burden of proof on the accused and the limitations of invoking the jurisdiction of the High Court under Section 482 Cr.P.C.
Fact of the Case:
The petitioner sought to quash the summon and process under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The respondent had filed a complaint against the petitioner for non-payment against a dishonoured cheque. The petitioner argued that there were no dues and that the criminal color had been given to civil proceedings.
Finding of the Court:
The court found that the petitioner's defense required evidence that could only be proved in a court of law and could not be appreciated, evaluated, or adjudged in the proceedings under Section 482 of Cr.P.C. It dismissed the petition and deemed the prayers untenable in law, while directing the Trial Court to consider and deal with the contentions and defense of the petitioner in accordance with the law.
Issues: The main issue was whether the summon and process under Section 138 of the NI Act and Section 420 of the IPC should be quashed. The court also addressed the jurisdiction of the High Court under Section 482 Cr.P.C. and the limitations of invoking this jurisdiction.
Ratio Decidendi: The court held that the power under Section 482 of Cr.P.C. cannot be exercised where the allegations are required to be proved in a court of law. It emphasized the technical nature of the offence under Section 138 of the NI Act, the inbuilt defences available to the accused, and the limitations of invoking the jurisdiction of the High Court under Section 482 Cr.P.C.
Final Decision: The petition was dismissed, and the Trial Court was directed to consider and deal with the contentions and defense of the petitioner in accordance with the law.
JUDGMENT :
Rajnish Bhatnagar, J.
CRL. M.A. 2630/2020
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL.M.C. 633/2020
1. The petitioner has filed the present petition u/s 482 of the Cr.P.C. with the prayer to quash the summon dated 19.08.2019 regarding issuance of the process alongwith the CT Case No. 12356/19 under Section 138 of the M Act pending in the Court of MM-4, South District, Saket Court.
2. The respondent herein had instituted a complaint under section 138 Negotiable Instruments Act 1881 read with Section 420 IPC against the petitioner herein in respect of non-payment against one dishonoured cheque for the amount of Rs. 65,00,000/- issued by petitioner in favour of the respondent company.
3. The Metropolitan Magistrate issued summons dated 19/08/2019 U/s 138 NI Act requiring the petitioner to attend the Court.
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 there are no dues towards anyone as the respondent has received the entire amount. He further argued that criminal colour has been given to civil proceedings.
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 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 acc
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