TMI Blog2010 (7) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... Randhir Jain, Deepak Aggarwal, Dharamraj Jain and D.K. Mehta for the Appellant. O.P. Saxena and Sunil Sharma for the Respondent. JUDGMENT Shiv Narayan Dhingra, J. The above and many more petitions arising out of the proceedings pending before the trial courts under section 138 of the Negotiable Instruments Act, 1881, are pending before this court. It is seen that the High Court is being flooded with petitions under section 482 of the Code of Criminal Procedure, 1973, for quashing of complaints under section 138 of the Negotiable Instruments Act, 1881 on the ground that learned Metropolitan Magistrates cannot recall their own orders of summoning and it is the High Court that should consider that the complaint under section 138 of the Negotiable Instruments Act, 1881 was not maintainable against the petitioners. Reliance is placed on Adalat Prasad v. Rooplal Jindal [2004] 7 SCC 338, to press the point that the petitioners have no other alternative but to approach the High Court. While Adalat Prasad's case [2004] 7 SCC 338, laid down that if a Magistrate takes cognizance of an offence and issues process, without there being any allegations against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t involved in the offence why he should be subjected to a long drawn trial. 2. One of the reasons that these petitions are flooding the 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 the Metropolitan Magistrate 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 the 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 the Metropolitan Magistrate at the very initial stage as per law. 3. The objectives of the proceedings of section 138 of the Negotiable Instruments Act, 1881, 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 the complainant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1881 are tried before the court of Metropolitan Magistrate/Judicial Magistrate in an expeditious manner, the Legislature provided for summary trial. Section 145 of the Negotiable Instruments Act, 1881 provides that evidence of the complainant may be given by him by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court. This also makes it clear that a complainant is not required to examine himself twice, i.e., one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with the complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages, i.e., pre-summoning stage and the post summoning stage. The complainant is not required to be recalled and re-examined after summoning of the accused unless the Metropolitan Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under section 145(2) of the Negotiable Instruments Act, 1881 suo motu by the court. Section 145 of the Negotiable Instruments Act, 1881 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld file an affidavit of his evidence and all necessary documents like the dishonour memo, returned cheque, notice of demand and then the learned Metropolitan Magistrate should scrutinise the complaint and document and if he finds that the affidavit and the documents disclose dishonour of cheque issued by the accused, issuance of a demand notice by the complainant, non-payment of the cheque amount by the accused despite notice, cheque return memo of the bank, etc., and if the court finds that the complaint was filed within the period of limitation, cognizance is to be taken and notice of appearance of the accused should be sent to the accused. In case the accused appears before the court of the Metropolitan Magistrate, the court should ask him as to what was his plea of defence. Normally the first date is wasted by the courts of the Metropolitan Magistrate just by taking bail bond of the accused and passing a bail order, while sections 251 and 263( g ) of the Code of Criminal Procedure, provide that when the accused appears before the Metropolitan Magistrate in a summary trial proceedings, the particulars of the offence, to which he is accused, shall be stated to him and he should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnical in nature and the defence which an accused can take are inbuilt, like the cheque was given without consideration, the accused was not a director at that time, the accused was a sleeping partner or a sleeping director, the 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. Since the mandate of the Legislature is trial of such cases in a summary manner, the evidence already given by the complainant by way of an 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 Negotiable Instruments Act, 1881 and has to be read during the trial. The witnesses, i.e., the complainant or other witnesses can be recalled only when an accused makes an application and this application must disclose the reason why the accused wants to recall the witnesses and on what point the witness is to be cross examined. One must not forget that the offence under section 138 of the Negotiable Instruments Act, 1881 is not of the kind of offence as in the IPC where the State prosecutes a person for an offence against the society. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s together and such accused who have documentary evidence of their not being liable to face trial, rush to the High Court. 11. The trial under section 138 of the Negotiable Instruments Act, 1881 cannot be carried out 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 under section 138 of the Negotiable Instruments Act, 1881, which is document based, is not tried in a summary manner, the sole purpose of making this offence in summary trial stands defeated. Thus in all cases under section 138 of the Negotiable Instruments Act, 1881, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the prosecution or the accused summon and examine the person giving evidence on affidavit as to the facts stated therein. It is submitted that this provision leaves no discretion to the trial court and in the event that an application is made, the court has to summon and examine any person giving evidence on affidavit as to the facts contained therein. Mr. Thakore, learned counsel for the applicant has further submitted that this sub-section (2) of section 145 was not taken into consideration by the Division Bench and the Division Bench only considered the provisions of section 145(1). I do not find this submission to be correct. As observed earlier, this provision has been taken into consideration by the Division Bench of this court in the case of KSL and Industries Ltd. Manu/MH/0022/2005. Thus, I find no merit in this submission. In fact paragraphs 38 and 39 of the said decision, referred to above, make it amply clear that the Division Bench took into consideration the provisions of sub-section (2) of section 145 of Negotiable Instruments Act, 1881 and has thereafter held that the evidence (examination-in-chief) of the complainant can be given on affidavit and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt should ask the accused to wait but if the accused/respondent has a valid defence to show that he need not face trial because of a specific defence and he was prepared to lead evidence to this effect, he should be directed to lead evidence in support of his plea. 15. In most of the cases, the court of Metropolitan Magistrate 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 the summary trial. Sections 143 and 145 of the Negotiable Instruments Act, 1881, were enacted by 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same, otherwise, it shall proceed to take defence evidence on record and allow cross-examination of defence witnesses by the complainant. Step IV : To hear arguments of both sides. Step V : To pass order/judgment." 18. In all the above criminal miscellaneous petitions the petitioners have come to this court raising one or the other defence. I consider that since summoning order in all these cases have been issued, it is now the obligation of these petitioners to take notice under section 251 of the Code of Criminal Procedure, if not already taken, and enter their plea of defence before the concerned Metropolitan Magistrate's court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witness, they should do so before the court of Metropolitan Magistrate. These petitions are, therefore, hereby dismissed. 19. The petitioners shall appear before the court of concerned Metropolitan Magistrate and trial shall proceed as stated above. 20. A copy of this judgment be sent to all the District Judges for circulation among officers of DJS and DHJS. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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