CRL.M.C./2857/2021 of JIGNESH KUMAR Vs M/S ESTER INDUSTRIES LTD. & ORS.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 15.11.2021

+CRL. M.C. 2857/2021JIGNESH KUMAR

..... Petitioner

Through:Mr. Yashvardhan, Ms. Smita Kantand ms. Kritika Nagpa, Advocates.and ms. Kritika Nagpa, Advocates.

versus

M/s. ESTER INDUSTRIES LTD. & ORS.Through:

..... Respondents

CORAM:HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

RAJNISH BHATNAGAR J. (ORAL)

CRL. M.A. No. 17982/2021 (for exemption)

Exemption allowed, subject to just exceptions.

The application stands disposed of.

CRL. M.C. 2857/2021 &CRL M.A. 17981/2021 (for stay)

1.The present petition U/s 482 Cr.P.C. has been filed by the petitionerwith the following prayers:with the following prayers:

a) Call for the records of Complaint Case No. 17074/2018 underSection 138 read with Section 142 of the Negotiable Instruments Act,1881 filed by the Respondent no. 1 pending before the Ld. Court ofChief Metropolitan Magistrate, Patiala House Court, New Delhi;Section 138 read with Section 142 of the Negotiable Instruments Act,1881 filed by the Respondent no. 1 pending before the Ld. Court ofChief Metropolitan Magistrate, Patiala House Court, New Delhi;

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b) Quash the Summoning Order dated 12.12.2018 issued by the Ld.Court of Ms. Vijeta Singh Rawat, Patiala House Court, New Delhiunder sections 138 and 142, Negotiable Instruments Act, 1881 quathe Petitioner;Court of Ms. Vijeta Singh Rawat, Patiala House Court, New Delhiunder sections 138 and 142, Negotiable Instruments Act, 1881 quathe Petitioner;

c) Quash the Complaint Case No. 17074/2018 filed under Section 138read with Section 142 of the Negotiable Instruments Act, 1881pending before the Court of Chief Metropolitan Magistrate, PatialaHouse Court, New Delhi qua the Petitioner Herein.read with Section 142 of the Negotiable Instruments Act, 1881pending before the Court of Chief Metropolitan Magistrate, PatialaHouse Court, New Delhi qua the Petitioner Herein.

2.The brief facts of the case are that the Accused No. 1 M/s.lnduPolymers, is Partnership Firm and is represented by its partners AccusedNo. 2 V.V. Satyanarayana and accused No. 3 Jignesh Kumar (Petitionerherein). The Accused No. 2 and 3 approached the Complainant/Respondentno.2 for purchase of Polyester PBT Chips, and Polycarbonates and requestedthe complainant to supply the said materials to the Accused. The accused inorder to partly liquidate the outstanding amount and towards the legallyenforceable debt, which has been due and payable to the complainant, issuedthe following four cheques in tune of Rs 12,00,000/-:Polymers, is Partnership Firm and is represented by its partners AccusedNo. 2 V.V. Satyanarayana and accused No. 3 Jignesh Kumar (Petitionerherein). The Accused No. 2 and 3 approached the Complainant/Respondentno.2 for purchase of Polyester PBT Chips, and Polycarbonates and requestedthe complainant to supply the said materials to the Accused. The accused inorder to partly liquidate the outstanding amount and towards the legallyenforceable debt, which has been due and payable to the complainant, issuedthe following four cheques in tune of Rs 12,00,000/-:

a. Cheque bearing No.001004 dt.30-9-2014 for Rs.3,00,000/-anddrawn on City Union Bank, Ranigunj, Secunderabad.drawn on City Union Bank, Ranigunj, Secunderabad.

b. Cheque bearing No.001003 dt.30-10-2014 for Rs.3,00,000/-anddrawn on City Union Bank, Ranigunj, Secunderabad.drawn on City Union Bank, Ranigunj, Secunderabad.

c. Cheque bearing No.001005 dt.30-10-2014 for Rs.3,00,000/-anddrawn on City Union Bank, Ranigunj, Secunderabad.drawn on City Union Bank, Ranigunj, Secunderabad.

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d. Cheque bearing No.001006 dt.30-9-2014 for Rs.3,00,000/-anddrawn on City Union Bank, Ranigunj, Secunderabad.

3.The said four cheques on presentation were dishonored with remarks“ContactDrawer/RefertoDrawer”on30.10.2014and01.11.2014respectively.

4.On 24.11.2014, Respondent No 2 served legal notice dt. 24.11.2014upon the accused persons, which was duly served upon them and evenreplied through their counsel vide reply dated 18.12.2014, but since nopayment was made under the cheque, the complaint was filed on 31.12.2014by respondent no. 2/Complainant.

5.The Petitioner has assailed the Summoning Order dated 12.12.2018vide which he was summoned by the Ld.MM for offences U/s 138 and 142of the N.I. Act.

6.It is vehemently urged by the Ld. counsel for the petitioner that thereare no allegations against the petitioner and though he was partner in therespondent no. 2 firm, but was neither into day-to-day affairs of thepartnership firm nor has any knowledge about the alleged transaction of thebusiness of partnership firm. It is further submitted that the presentpetitioner is not signatory to the cheques in question and the said chequeswere issued by other Managing Partners.

Ld. Counsel for the petitioner has placed reliance on the followingjudgments:

Katta Sujatha v. Fertilizers and Chemicals Travancore Ltd.And Anr. [(2002) 7 SCC 655]

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K. Srikanth Singh v. North East Securities Ltd. And AnrK. Srikanth Singh v. North East Securities Ltd. And Anr[(2007) 12 SCC 788]

Smt. Meenu Goyal v. M/S Micromax Informatics Ltd. &Ors.[2021 (276) DLT 80]

MonabenKetanbhai Shah and Ors. v. State of Gujarat andOrs. [AIR 2004 SC 4274]MonabenKetanbhai Shah and Ors. v. State of Gujarat andOrs. [AIR 2004 SC 4274]

Sham Sunder v. State of Haryana [(1989) 4 SCC 630]Sham Sunder v. State of Haryana [(1989) 4 SCC 630]

Pooja Ravinder Devidasani v. State of Maharashtra and Anr.Pooja Ravinder Devidasani v. State of Maharashtra and Anr.[(2015) 3 SCC (Cri) 378]

Sabitha Ramamurthy v. R.B.S.Channabasavaradhya [SabithaRamamurthy v. R.B.S. Channabasavaradhya, (2006) 10 SCCSabitha Ramamurthy v. R.B.S.Channabasavaradhya [SabithaRamamurthy v. R.B.S. Channabasavaradhya, (2006) 10 SCC

581 : (2007) SCC (Cri) 621]

7.As far as the judgments relied upon by the Ld. Counsel for thepetitioner are concerned, there is no dispute with regard to the proposition oflaw laid down in the said judgments, but with due regard, the same are notapplicable to the facts of the present case.

8.Now coming to the legal position in this case and taking intoconsideration the various provisions of Cr.P.C. which have been discussedin various judgments time and again and demonstrate that the NegotiableInstruments Act, provides sufficient opportunity to person who issues thecheque. Once cheque is issued by person, it must be honored and if it isnot honored, the person is given an opportunity to pay the cheque amount byissuance of notice and if he still does not pay, he is bound to face thecriminal trial and consequences. It is seen in many cases that the petitioners

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with malafide intentions and to prolong the litigation raise false andfrivolous pleas and in some cases, the petitioners do have genuine defence,but instead of following due procedure of law, as provided under the N.I.Act and the Cr.P.C,and further, by misreading of the provisions, such partiesconsider that the only option available to them is to approach the HighCourtand on this, the High Court is made to step into the shoes of theMetropolitan Magistrate and examine their defence first and exonerate them.The High Court cannot usurp the powers of the Metropolitan Magistrate andentertain plea of an accused, as to why he should not be tried underSection 138 of the N.I. Act. This plea, as to why he should not be tried underSection 138 of the N.I. Act is to be raised by the accused before the Court ofthe Metropolitan Magistrate under Section 251 of the Cr.P.C. &underSection 263(g) of the Cr.P.C. Along with this plea, he can file necessarydocuments and also make an application, if he is so advised, under Section145(2) of the N.I. Act to recall the complainant to cross examine him on hisplea of defense. However, only after disclosing his plea of defence, he canmake an application that the case should not be tried summarily but as asummons trial case.

9.An offence under Section 138 of the N.I. Act is technical in natureand defences, which an accused can take, are inbuilt; for instance, thechequewasgivenwithoutconsideration,theaccusedwasnotaDirector/partner at that time, accused was sleeping partner or sleepingDirector or that accused was not signatory of the cheque or cheque wasgiven as security etc, etc., the onus of proving these defences is on the

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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 summarymanner, the evidence already given by the complainant by way of affidavitis sufficient proof of the offence and this evidence is not required to begiven again in terms of section 145(1) of the N.I. Act and has to be readduring the trial. The witnesses i.e., the complainant or other witnesses can berecalled only when the accused make such an application and thisapplication must disclose the reason why the accused wants to recall thewitnesses and on what point the witnesses are to be cross-examined

10.The offence under Section 138 of the N.I. Act is an offence in thepersonal nature of the complainant and since it is within the specialknowledge of the accused as to why he is not to face trial under section 138N.I. Act, he alone has to take the plea of defense and the burden cannot beshifted to complainant. There is no presumption that even if an accused failsto bring out his defense, he is still to be considered innocent. If an accusedhas defense against dishonor of the cheque in question, it is he alone whoknows the defense and responsibility of spelling out this defense to theCourt and then proving this defense is on the accused. Once the complainanthas brought forward his case by giving his affidavit about the issuance ofcheque, dishonor of cheque, issuance of demand notices etc., he canbe cross-examined only if the accused makes an application to the Court as to, onwhat point he wants to cross examine the witness (es) and then only theCourt shall recall the witness by recording reasons thereto.CRL.M.C. 2857/21

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11.Sections 143 and 145 of the N.I. Act were enacted by the Parliamentwith the aim of expediting trial in such cases. The provisions of summarytrial enable the respondent to lead defense evidence byway of affidavits anddocuments. Thus, an accused who considers that he has tenable defenseand the case against him was not maintainable, he can enter his plea on thevery first day of his appearance and file an affidavit in his defense evidenceand if he is so advised, he can also file an application for recalling any of thewitnesses for cross examination on the defense taken by him.

12.In view of the procedure prescribed under the Cr.P.C, if the accusedappears after service of summons, the learned Metropolitan Magistrate shallask him to furnish bail bond to ensure his appearance during trial and askhim to take notice under Section 251 Cr.PC and enter his plea of defenceand fix the case for defence evidence, unless an application is made underSection 145(2) of N.I. Act for recalling witness for cross-examination byan accused in defence. If there is an application u/s 145(2) of N.I. Act forrecalling witness of complainant, the court shall decide the same,otherwise, it shall proceed to take defence evidence on record and allowcrossexaminationofdefencewitnessesby complainant.Oncethesummoning orders in all these cases have been issued, it is now theobligation of the accused to take notice under Section 251 of Cr.P.C., if notalready taken, and enter his/her plea of defence before the concernedMetropolitan Magistrate's Court and make an application, if they want torecall any witness. If they intend to prove their defence without recalling any

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complainant witness or any other witnesses, they should do so before theCourt of Metropolitan Magistrate.

13.In the instant case the respondent no. 2/complainant in paragraph (1)and subsequent paragraphs of his complaint under Section 138 and 142 ofN.I. Act has made specific averments that the Accused No.1 is PartnershipFirm and is represented by its partners Accused No. 2 and 3. Further, statingthat the Accused No. 2 and 3 approached the Complainant for purchase ofPolyester PBT Chips, and Polycarbonates and requested the complainant tosupply the said materials to the Accused. It is specifically averred that theAccused had been purchasing the goods from the Complainant from time totime and invoices were forwarded against the said supplies by theComplainant and the accused used to make payments, with respect to thesaid invoices, which were duly given credit by complainant in their books ofaccount. However, the Accused in order to partly liquidate the outstandingamount and towards the legally enforceable debt, which has been due andpayable to the complainant, issued the four cheques, which were dishonored.The plea raised by the Ld. Counsel for the petitioner that the presentpetitioner was only partner in the respondent no. 2 firm, but was neitherinto day-to-day affairs of the partnership firm nor has any knowledge aboutthe alleged transaction of the business of partnership firm cannot beconsidered at this preliminary stage since such defense can only beconsidered during the stage of trial.

14.Now, coming to the jurisdiction, suffice it to say that the Court, inexercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth

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or otherwise of the allegations made in the complaint or delve into thedisputed question of facts. The issues involving facts raised by the petitionerby way of defence can be canvassed only by way of evidence before theTrial Court and the same will have to be adjudicated on merits of the caseand not by way of invoking jurisdiction under Section 482 Cr.P.C. at thisstage.

15.Upon analyzing the provisions of the N.I. Act, it is clear that Section138 of the Act spells out the ingredients of the offence as well as theconditions required to be fulfilled before initiating the prosecution.

16.These ingredients and conditions are to be satisfied mainly on thebasis of documentary evidence, keeping in mind the presumptions underSections 118 and 139 of the N.I. Act and Section 27 of the General ClausesAct, 1897 as well as the provisions of Section 146 of the Act.

17.The provisions of Sections 142 to 147 lay down Special Code forthe trial of offences under the Chapter XVII of the N.I.Act. Whileconsidering the scope and ambit of the amended provisions of the Act, theSupreme Court in Mandvi Co Op BankLtd v. Nimesh B. Thakore, AIR 2010SC 1402, has held that the provisions of Sections 143, 144, 145 and 147expressly depart from and override the provisions of the Cr.P.C, the mainbody of adjective law for criminal trials. The Supreme Court has further heldas under:-"17. It is not difficult to see that sections 142 to 147lay down akind of special Code for the trial of offences under Chapter XVII of theNegotiable Instruments Act and sections143 to 147 were inserted in the Actby the Negotiable Instruments Amendment and Miscellaneous Provisions)

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Act, 2002 to do away with all the stages and processes in regular criminaltrial that normally cause inordinate delay in its conclusion and to make thetrial procedure as expeditious as possible without in any way compromisingon the right of the accused for fair trial."

18.The parameters of the jurisdiction of the High Court in exercisingjurisdiction under Section 482Cr.P.C, are now almost well-settled. Althoughit has wide amplitude, but great deal of caution is also required in itsexercise. The requirement is the application of well-known legal principlesinvolved in each and every matter Adverting back the facts of the presentcase, this Court does not find any material on record which can be stated tobe of sterling and impeccable quality warranting invocation of thejurisdiction of this Court under Section 482 Cr.P.C. at this stage. More so,the defence raised the petitioners in the petition requires evidence, whichcannot be appreciated, evaluated or adjudged in the proceedings underSection 482 of Cr.P.C. and the same can only be proved in the Court of law.Reliance can be placed upon "State of Madhya Pradesh Vs. Yogendra SinghJadon & Anr"., Criminal Appeal No. 175 of 2020 (Arising out of SLP(Criminal)No. 172 of 2017) decided by the Hon'ble Supreme Court onJanuary 31, 2020 in which it has been held that "the power under Section482 of the Code of Criminal Procedure, 1973 cannot be exercised where theallegations are required to be proved in Court of law".

19.In the instant case, all these issues mentioned herein above involvesdisputed question of facts and law and cannot be decided unless and until theparties go to trial and lead their respective evidence. Though invariably the

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initial phase of litigation under Section 138 of the N.I. Act depends onhow well the pleadings or the allegations are laid down or articulated, by thecomplaint, in the ultimate analysis it is the trial that alone can bring out thetruth so as to arrive at just and fair decision for the parties concerned.

20.Accordingly, I find no flaw or infirmity in the proceedings pendingbefore the Trial Court. However, the Trial Court shall certainly consider anddeal with the contentions and the defense of the petitioner in accordancewith law.

21.The prayers are untenable in law. Hence, this court does not deem itappropriate to issue notice to the respondents. Accordingly, the petition isdismissed and CRL M.A. 17981/2021 is also disposed of accordingly.

RAJNISH BHATNAGAR, J

NOVEMBER 15, 2021

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