SHORT NOTE
DELHI HIGH COURT
Shiv Narayan Dhingra, J.
Rajesh Agarwal —Petitioner
versus
State & Anr. —Respondents
Criminal M.C. No. 1996 of 2010 & M.A. No. 7672 of 2010
Decided on 28.07.2010

IMPORTANT POINTS
(1) There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent.
(2) Evidence already given by complainant by way of affidavit is sufficient proof of offence and this evidence is not required to be given again.

Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Section 482 of Cr .P .C. can be resorted to only where High Court is called upon to examine complaint and material available before Trial Court at the time of summoning per se to arrive at a conclusion that no case was made out against petitioner/accused. However, in all petitions pending before court quashing of summoning order is sought not on the ground that complaint and evidence adduced by complainant before MM do not disclose commission of offence by petitioner, but, on the ground that petitioner had various defences like petitioner was not Director of company at the time when cheque was issued or that cheque was issued without consideration, cheque was issued as security, cheque though issued by petitioner was not from his own account but from some other account etc.—This situation is arising because lower courts are not following mandate of the statute of conducting trial of cases under section 138 of N.I. Act in a summary manner and despite amendment in N.I. Act continue trying these cases as summon trial cases and a long drawn procedure is followed.

       Held: Mmany more petitions arisen out of the proceedings pending before the Trial Courts under section 138 of Negotiable Instrument Act (N.I. Act) are pending before this Court. It is seen that the High Court is being flooded with petitions under section 482 Cr.P.C. for quashing of complaints under Section 138 N.I. Act on the ground that learned MMs cannot recall their own orders of summoning and it is the High Court that should consider that the complaint under section 138 of N.I. Act was not maintainable against the petitioners. Reliance is placed on Adalat Prasad v. Rooplal Jindal & Ors., 2004 (7) SCC 338 to press the point that the petitioners have no other alternative but to approach the High Court. While Adalat Prasad case (supra) laid down that if a Magistrate takes cognizance of an offence and issues process, without there being any allegations against the accused or any material implicating the accused, the order of Magistrate may be vitiated, but the relief, an aggrieved accused can obtain at that stage is not by invoking Section 207 of Cr. P.C. The remedy lies in invoking section 482 Cr.P.C. It is clear from the Judgment of Adalat Prasad case (supra) that Section 482 of Cr .P .C. can be resorted to only where the High Court is called upon to examine the complaint and material available before the Trial Court at the time of summoning per se to arrive at a conclusion that no case was made out against the petitioner/accused. However, in all the petitions pending before this court and other petitioner flowing before this court daily, the quashing of summoning order is sought not on the ground that complaint and evidence adduced by the complainant before MM do not disclose commission of offence by the petitioner, but, on the ground that petitioner had various defences like the petitioner was not the Director of the company at the time when cheque was issued or when cheque was dishonoured; the petitioner was not responsible for conduct of business of company/ firms, the petitioner was only a sleeping partner in the partnership firm, the issuance of cheque and its dishonour was without the knowledge of the petitioner, that cheque was issued without consideration, the cheque was issued as security, the cheque though issued by the petitioner was not from his own account but from some other account, the petitioner was a Director but had resigned from Directorship at the relevant time etc. Many similar or other defences are raised in these petitions while invoking inherent powers of this Court under section 482 Cr.P.C. The argument advanced in all such cases is that the material & documents in custody of the petitioner show that he was not involved in day-to-day business, but such unimpeachable documents cannot be considered by the court of MM at initial stage and they should be considered by the High Court for quashing the complaint. It is submitted in these petitions that subjecting the petitioner to a long drawn trial would amount to curtailment of liberty of the petitioner and if the petitioner was not involved in the offence why he should be subjected to a long drawn trial.

        One of the reasons that these petitions are flooding High Court is that the petitioners involved, in most of the cases, are affluent persons who do not wish to appear before the Courts of MM or consider it below their dignity to go to lower court and come rushing to High Court on mere passing of a summoning order and are successful in halting proceedings before the lower court on one or the other ground; while the kind of defences raised by the petitioners are required to be raised before the Court of MM at the very initial stage as per law.

       The objectives of the proceedings of Section 138 of N.I. Act is that cheques should not be used by persons as a tool of dishonesty and 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 must face the criminal trial and consequences. However, the effort of some of the petitioners is to teach a lesson to complainant for approaching court of law. The amount of cheque is not paid despite demand notice and the complainant is made to suffer further by prolonging the litigation carrying it from one forum to other. In many cases, the petitioners do have genuine defence, but, due to mis-reading of the provisions of N.I. Act and Cr.P.C. it is considered that the only option available is to approach the High Court and on this the High Court is made to step into the shoes of Metropolitan Magistrate and examine their defence first and exonerate them. I consider that this situation is arising because of the fact that MMs at lower court are not following the mandate of the statute of conducting trial of cases under section 138 of N.I. Act in a summary manner and despite amendment in N.I. Act continue trying these cases as summon trial cases and a long drawn procedure. (Paras 1 and 3)

       (ii) Negotiable Instruments Act, 1881—Section 145—Dishonour of cheque—Summary trial— Along with complaint under section 138 complainant should file affidavit of his evidence and all necessary documents like dishonour memo, returned cheque, notice of demand and then MM should scrutinize complaint and document and if he finds that affidavit and documents disclose dishonour of cheque issued by accused, issuance of a demand notice by complainant, non-payment of cheque amount by accused despite notice, cheque return memo of bank etc. and if court finds that complaint was filed within period of limitation, cognizance is to be taken.

       Held: The difference between summary trial and summon trial is thus obvious. In summary trial after the accused is summoned, his plea is to be recorded under section 262 (g) of Cr.P.C. and his examination if any can be done by MM and a finding can be given by the court under section 263(h) of his examination. The same procedure is to be followed by the MMs for offence of dishonour of cheque. If proviso a, b & c to Section 138 N.I. Act are shown to have been complied with, technically the commission of offence stands completed. It is for the accused to show that no offence could have been deemed to be committed by him for some specific reasons & defences. He cannot simply say “I am innocent” or “I plead not guilty.”

       An argument is raised that the accused, under Article 21 of Constitution of India, has a right of silence in a criminal trial and therefore he cannot be forced to disclose his defence. This argument is misconceived in view of Section 106 of Indian Evidence Act. Since an offence under section 138 of Negotiable Instrument Act is technical in nature and defence which an accused can take are inbuilt, like the cheque was given without consideration, the accused was not 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 Evidence Act Since the mandate of Legislature is 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 N.I. Act and has to be read during the trial. The witnesses i.e. the complainant or other witnesses can be recalled only when accused makes an application and this application must disclose the reason why accused wants to recall the witnesses and on what point witness is to be cross examined. One must not forget that the offence under section 138 of N.I. Act is not of the kind of offence as in IPC where the State prosecutes a person for offence against the society. The offence under section 138 of N.I. Act is an offence in the personal nature of the complainant and it is an offence made under N.I. Act so that the trust in commercial transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face trial under section 138 N.I. Act, he alone has to take the plea of defence and burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused. I, therefore, consider that the proper procedure to be followed by MM is that soon after summoning, the accused must be asked to disclose his defence & his plea should be recorded. Where an accused takes no defence and simply says “I am innocent”, there is no reason for the MM to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witnesses and then only the court shall recall the witness by recording reasons thereto. (Paras 7 to 9)

       (iii)Negotiable Instruments Act, 1881—Sections 138 and 145—Evidence Act, 1872—Section 106—Constitution of India—Article 21—Dishonour of cheque—Since offence under section 138 is technical in nature and defence which accused can take are inbuilt, onus of proving these defences is on accused alone— Evidence already given by complainant by way of affidavit is sufficient proof of offence and this evidence is not required to be given again in terms of section 145(1) and has to be read during trial. (Para 9)

       (iv) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 311—Dishonour of cheque—Complainant or other witnesses can be recalled only when accused makes application and this application must disclose reason why accused wants to recall witnesses and on what point witness is to be cross examined—There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent—If accused has defence against dishonour of cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to court and then proving this defences is on accused. (Para 9)

       (v) Negotiable Instruments Act, 1881—Sections 138 and 145—Dishonour of cheque—In all cases under section 138, once evidence is given by way of affidavit, at the stage of pre-summoning, same evidence is to be read by court at post summoning stage and witness need not be recalled at post summoning stage unless court, for reasons, considers it necessary—Trial under section 138 cannot be carried like any other summons trial under IPC offences—Documents placed on record of Court about dishonour of cheque are documents from banks and unless accused says that these documents are forged, evidence of complainant about dishonour of cheque cannot be questioned, nor complainant can be asked to depose before court again.

       Held: The trial under section 138 of NI Act cannot be carried like any other summons trial under IPC offences. The documents placed on record of the Court about the dishonour of cheque are the documents from banks and unless the accused says that these documents are forged, or he had not issued the cheque at all, he did not have any account in the bank, the cheque was not signed by him, the cheque book was forged by the complainant or other similar claim, the evidence of the complainant about dishonour of cheque cannot be questioned, nor the complainant can be asked to depose before the court again. If the case u/s.138 N.I. Act, which is document based, is not tried in summary manner, the sole purpose of making this offence summary trial stands defeated. Thus in all cases under section 138 of N.I. Act, once evidence is given by way of affidavit, at the stage of pre-summoning, the same evidence is to be read by the court at post summoning stage and the witness need not be recalled at post summoning stage unless court of MM, for reasons, considers it necessary. (Para 11)

       (vi)Negotiable Instruments Act, 1881—Sections 138 and 144—Criminal Procedure Code, 1973—Section 64—Dishonour of cheque—Service of notice—Service by affixation is a valid mode of service under criminal law— Wherever accused is evading his service, court should direct service through affixation as provided under section 65 of Cr .P .C. and in case accused does not appear court is at liberty to take steps for coercive appearance.

       Held: Under section 144 of N.I. Act service of accused can be effected through registered post/speed post or by courier service and if the accused refuses to receive the summons, he can be declared served and court can take coercive measures for entering appearance of the accused. Chapter VI of Cr.P.C., under section 62, 63 and 64, provides how summons are to be served on accused persons by police. Section 65 thereof provides that if service cannot be effected in the manner as provided in section 62, 63 or 64 of Cr.P.C., the serving officer shall affix one copy summon on some conspicuous part of his house or area in which the accused resides and the court after making such inquiries may declare that the summons have been duly served. Thus service by affixation is a valid mode of service under criminal law and wherever the accused is evading his service, the court of MM should direct service through affixation as provided under section 65 of Cr .P .C. and in case the accused does not appear the court is at liberty to take steps for coercive appearance. (Para 13)

       (vii)Negotiable Instruments Act, 1881—Sections 138, 143 and 145—Dishonour of cheque—Summary trial—Accused who considers that he has a tenable defence and case against him was not maintainable, he can enter his plea on very first day of his appearance and file affidavit in his defence evidence—He can also file application for recalling any of witnesses for cross examination on defence taken by him.

       Held: In most of the cases the court of MM may not feel necessary that a sentence of imprisonment of more than one year should be inflicted. Unless the court, for reasons to be given, considers that the punishment in a case should be more than one year, the court cannot deviate from the procedure of summary trial and cannot ask the accused to appear again and again and defeat the very purpose of summary trial. Section 143 and 145 of N.I. Act were enacted by the parliament with the aim of expediting trial in such cases. The provisions of summary trial enable the respondent to lead defence evidence by way of affidavit and documents. Thus an accused who considers that he .has a tenable defence and the case against him was not maintainable, he can enter his plea on the very first day of his appearance and file an affidavit in his defence evidence and if he is so advised, he can also file alt application for recalling any of the witnesses for cross examination on the defence taken by him. (Para 15)

       Result: Petition disposed of with directions.