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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajnish Bhatnagar, J.
Dinesh Verma – Appellant
Versus
State Govt. of NCT & Anr. – Respondents
Cr.M.C. 765 of 2023 and Cr.M.C. 766 of 2023
Decided On : 03-02-2023
Section 138 N.I. Act - Quashing of Summoning Orders - [Pepsi Foods Ltd., S.M.S. Pharmaceuticals Ltd., Omniplast Private Limited, Shivom Minerals Limited] - The court discussed the summoning orders under Section 138 of the Negotiable Instruments Act and the legal provisions related to dishonor of cheques. It highlighted the importance of following due procedure of law and the accused's responsibility to present a defense before the Metropolitan Magistrate's Court.
Fact of the Case:
The petitioner filed petitions under Section 482 Cr.P.C. seeking to quash the summoning orders issued in complaint cases under Section 138 of the Negotiable Instruments Act. The petitioner claimed that the complaints were false and frivolous, alleging that the cheques were misused and forged by the respondent.
Finding of the Court:
The court found that the summoning orders were valid and that the petitioner failed to provide a satisfactory explanation for the delay in filing the petitions. It also rejected the petitioner's claim of the cheques being lost and misused by the respondent.
Issues: Validity of summoning orders under Section 138 of the N.I. Act, petitioner's explanation for delay, and the alleged misuse of cheques.
Ratio Decidendi: The accused has the responsibility to present a defense before the Metropolitan Magistrate's Court and follow the due procedure of law as provided under the N.I. Act and the Cr.PC. Delay in filing petitions must be satisfactorily explained.
Final Decision: The court dismissed the petitions and pending applications, finding them devoid of any merits.
JUDGMENT
Rajnish Bhatnagar J. (Oral)
CRL.M.A. 2918/2023 in CRL.M.C. 765/2023
CRL.M.A. 2920/2023 in CRL.M.C. 766/2023
Exemption allowed, subject to all just exceptions.
The applications stand disposed of.
CRL.M.C. 765/2023 & CRL.M.A. 2917/2023 (stay)
CRL.M.C. 766/2023 & CRL.M.A. 2919/2023 (stay)
1. The present petitions have been filed by the petitioner under Section 482 Cr.P.C. for quashing of the summoning order dated 15.02.2022 passed by Ld. ACMM, North, Rohini Courts, Delhi, in Complaint Case No. 685/2019 registered under Section 138 N.I. Act and for quashing of the summoning order dated 06.05.2019 passed by Ld. MM (N.I. ACT)-03, Central, Tis Hazari Courts, Delhi, in Complaint Case No. 898/2019 registered under Section 138 N.I. Act and the proceedings emanating therefrom.
2. The complainant/Respondent No. 2 herein, had instituted a complaint case no. 685/2019 under section 138 of Negotiable Instruments Act, against the petitioner in respect of non-payment against three dishonored cheques for the amount of Rs.10,00,000/-, Rs.4,00,000 and Rs.9,00,000/- and complaint case no. 898/2019 in respect of non-payment against three dishonored cheques for the amount of Rs.6,00,000/-, Rs.4,00,000 and Rs.12,00,000/-, issued by the petitioner in favour of respondent no. 2.
3. The Metropolitan Magistrate vide order dated 15.02.2022 in complaint case no. 685/2019 and vide order dated 06.05.2019 in complaint case no. 898/2019 issued summons U/s 138 NI Act requiring the petitioner to attend the Court.
4. The petitioner being aggrieved filed the present petitions 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 complaint filed by the complainant under Section 138 of Negotiable Instruments Act, against the petitioner is false and frivolous and the same has been made after making forged signatures on the cheques in question. He submits that the cheques in question have been misused by the respondent after stealing them from the petitioner in 2009-2010. Ld. Counsel for the petitioner has confined his submissions to impugned complaint not disclosing the nature of business transactions and thus, he submits that it cannot be assumed that there exists a legally enforceable debt or liability. Lastly, he submits that this petition is filed bona fide, in the interest of justice and without any intentional delay.
Ld. Counsel for the petitioner in support of his contentions has placed reliance on the following judgments:
6. On the contrary, Learned counsel for the respondent has pointed out that the cheques in question were presented within its validity period, the complainant got the intimation of cheques being dishonored on 13.12.2018 and subsequently, the legal notice was issued on 27.12.2018. He submits that more than 15 days elapsed from the date of receipt of notice, however, the petitioner still failed to make any payment. He further submits that the petitioner knowing well that his cheques will not be honoured by the drawee bank and that there is not sufficient balance in the Bank account, issued the cheques in question. He also submits that the contention of Ld. Counsel for the petitioner regarding cheques being lost in the 2009-2010 seems highly improbable as even if the cheques got lost, the petitioner has neither made any efforts to inform the bank nor has lodged any police complaint hitherto. He further submits that the presumption under Section 139 N.I Act includes a presumption that there exists a legally enforceable debt and liability. It has also been argued by Ld. Counsel for the respondent that the petitioner has failed
The accused has the responsibility to present a defense before the Metropolitan Magistrate's Court and follow the due procedure of law as provided under the N.I. Act and the Cr.PC.
The High Court cannot quash a Section 138 complaint based on defenses that require factual evidence; such defenses must be raised during the trial process.
The technical nature of the offence under Section 138 of the N.I. act, the inbuilt defences available to the accused, and the summary trial procedure were central legal principles established in the ....
The legal presumption under Section 139 of the NI Act favors the complainant, and factual disputes must be resolved at trial, not pre-trial.
The accused has the responsibility of spelling out their defense to the court and proving it.
Dishonour of a cheque under Section 138 is actionable regardless of claims of stop payment or misplaced cheque, with legal presumptions favoring existence of debt or liability.
Quashing of FIR is an exception rather than an ordinary rule, and the High Court should exercise the powers under Section 482 Cr.P.C sparingly with circumspection.
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