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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajnish Bhatnagar, J.
Piyush Kumar Pappu – Appellant
Versus
Mukesh Kumar Bharti – Respondent
Crl.M.C. 2301 of 2023
Decided On : 16-08-2023
Negotiable Instruments Act - Summoning under Section 138 NI Act - [Criminal Revision Petition] - [Section 138 of the Negotiable Instruments Act] - [Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act and the conditions stipulated in the provisos to Section 138 NI Act. It also referred to the judgment in Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel and the principles laid down in Pepsi Foods Ltd. vs. Special Judicial Magistrate. The court emphasized the need for evidence to support the defenses raised by the petitioner and the discretionary power of condonation of delay. The court also highlighted the presumption under Section 138 of the NI Act regarding the issuance of a cheque for the discharge of debt or liability. The judgment focused on the requirement for evidence and the need to decide the matter on merits.
Fact of the Case:
The petitioner filed a criminal revision petition under Section 482 Cr.P.C. seeking to quash the summoning order and the complaint filed under Section 138 of the Negotiable Instruments Act. The petitioner argued that the summoning order was based on gross illegality and that the defenses raised could only be decided after leading of evidence.
Finding of the Court:
The court dismissed the revision petition primarily on the grounds of delay in filing the petition and the need for evidence to support the defenses raised by the petitioner. The court emphasized the discretionary power of condonation of delay and the requirement to decide the matter on merits.
Issues: The issues revolved around the legality of the summoning order under Section 138 of the Negotiable Instruments Act, the defenses raised by the petitioner, and the delay in filing the revision petition.
Ratio Decidendi: The court held that the matter requires evidence and the petitioner would be entitled to raise all the defenses during the course of trial. The court also emphasized the discretionary power of condonation of delay and the need to decide the matter on merits.
Final Decision: The court dismissed the revision petition, condoned the delay in filing the petition, and emphasized the need for evidence to support the defenses raised by the petitioner.
JUDGMENT
Rajnish Bhatnagar, J.
CRL.M.A. 8684/2023 & CRL.M.A. 8685/2023 (exemption)
Exemptions allowed, subject to all just exceptions.
The application stands disposed of.
CRL.M.C. 2301/2023 & CRL.M.A. 8683/2023 (stay)
1. The present petition has been filed under Section 482 Cr.P.C. by the petitioner with the following prayers:
"a) Quash and Set aside the Impugned Order dated 20.03.2023 passed by Ld. Principal District & Sessions Court, New Delhi District, Patiala House Courts, New Delhi in Criminal Revision no. 144 of 2023 titled "Piyush Kumar Pappu Vs. Mukesh Kumar Bharti", and
b) Quash and Set aside summoning order dated 19.07.2022 passed by the Ld. Metropolitan Magistrate, NI Digital Court-02, New Delhi District, Patiala House Court, New Delhi passed in the CC NI Act no. 2461/2022 titled as "Mukesh Kumar Bharti Vs. Piyush Kumar Pappu", and consequently dismiss the complaint bearing CC NI Act no. 2461/2022 titled as "Mukesh Kumar Bharti Vs. Piyush Kumar Pappu", and/or
c) Pass such further direction(s) and other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice."
2. It is submitted by the learned Counsel for the petitioner that learned Sessions Court erred in recognising that the learned MM committed gross illegality in taking the cognizance of the offence under Section 138 of the Negotiable Instruments Act and in summoning the petitioner on the basis of the said complaint filed by the respondent relying upon the cheque in question. He further submitted that the learned Sessions Court failed to consider that the learned MM ignored the contents of the said complaint and documents placed on record with the said complaint filed by the respondent under Section 138 N.I. Act and further have exceeded his jurisdiction by wrongly relying upon the allegations in the complaint, documents annexed and issued summons to the petitioner herein. He further submitted that the learned Sessions Court erred in passing the impugned order dated 20.03.2023 by observing that the revision petition is barred by limitation despite there being no delay. He further submitted that the learned Sessions Court overlooked and ignored the contents of the delay application filed by the petitioner along with the revision petition which clearly stated that the said application is filed only by way of abundant precaution even though there was no delay in filing the revision petition. He further submitted that the learned Sessions Court ignored the order dated 10.02.2023 passed by learned MM which specifically states that the copy of the complaint along with its documents was provided to the complainant on 10.02.2023 itself and the summoning order dated 19.07.2022 could not have been challenged without the Petitioner knowing the contents/allegations levelled against the Petitioner in the said complaint.
3. Learned counsel for the petitioner also submitted that the Ld. Sessions Court erred to consider that the Ld. MM in issuing summoning order dated 19.07.2022 against the Petitioner/Accused has wrongly presumed that the cheque issued is in discharge of liability towards the friendly loan of Rs.38,76,000/- given in cash by the respondent/complainant to the petitioner/accused and there is no evidence placed on record to support the same to make it legally enforceable.
4. Learned counsel for the petitioner has also relied on some judgements to support his case, namely, judgment passed by the Hon'ble Apex Court in "Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel" reported in AIR 2022 SC 4961 wherein it was held that for the commission of an offence under Section 138, the cheque that is dishonoured must pass the muster of legally enforceable debt on the date of maturity or presentation. The Hon'ble Apex Court also held that the conditions stipulated in the provisos to Section 138 NI Act need to be fulfilled in addition to the ingredients in the substantive part of Section 138 NI Act. H
AI
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 court upheld the summoning order under Section 138 of the NI Act, confirming that the complaint was filed within the limitation period and a prima facie case was established against the petitione....
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.
The legal presumption under Section 139 of the NI Act favors the complainant, and factual disputes must be resolved at trial, not pre-trial.
A complaint under Section 138 of the NI Act must be filed within one month from the date of the cause of action, but courts can condone delays upon showing sufficient cause.
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 High Court cannot quash a Section 138 complaint based on defenses that require factual evidence; such defenses must be raised during the trial process.
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