TMI Blog2019 (2) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... was discharged. Jurisdiction - Held that:- The Court, in exercise of its jurisdiction under Section 482 Cr.PC. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. The issues involving facts raised by the petitioner by way of defence can be canvassed only by way of evidence before the Trial Court and the same will have to be adjudicated on merits of the case and not by way of invoking jurisdiction under Section 482 Cr.PC. at this stage. In the facts of the present case, this Court does not find any material on record which can be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so, the defence raised by the petitioner in the petitions requires oral as well as documentary evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC. - The bare assertions of the learned counsel for the petitioner that the petitioner has already paid the amount or the respondent has already received or realized the cheque amount or the cheques are without consideration as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an amount of ₹ 11,84,385/-, ₹ 7,89,590/-, 2,02,000/- and ₹ 6,00,000/- respectively, from the account of M/s Gold Field Shiksha Sanstha. On presentation of the said cheques, the same were dishonoured and returned to the respondent-Company with the endorsement Refer to Drawer on 04.04.2016. 5. Thereafter, the respondent-Company issued legal notices dated 28.04.2016 to the petitioner and the same were received by the petitioner on 03.05.2016. Despite receiving the said notices, the petitioner did not make the requisite payment within the stipulated period of 15 days. Hence, the respondent-Company filed the complaints under Section 138 of the NI Act. 6. Learned counsel for the petitioner submitted that the petitioner has already paid the entire amount which fact has not been disclosed by the respondent. It is further submitted by the learned counsel that even otherwise, the respondent has not filed the relevant documents which convinced the Trial Court to pass the summoning order, and the respondent could have initiated proceedings under Section 138 of the NI Act only in case the respondent was not able to recover the loan amount from auctioning of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised, under Section 145(2) of the NI Act to recall the complainant to cross-examine him on his plea of defence. However, only after disclosing his plea of defence, he can make an application that the case should not be tried summarily but as a summons trial case. 10. An offence under Section 138 of the NI Act is technical in nature and defences, which an accused can take, are inbuilt; for instance, the cheque was given without consideration, the accused was not a 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 the Indian Evidence Act, 1872. Since the mandate of the legislature is the 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 the NI Act and has to be read during the trial. The witnesses i.e. the complainant or other witnesses can be recalled only when the accused makes such an application and this application must disclose the reason why the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross examination of defence witnesses by complainant. Once the summoning orders in all these cases have been issued, it is now the obligation of the accused to take notice under Section 251 of Cr. PC., if not already taken, and enter his/her 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 witnesses, they should do so before the Court of Metropolitan Magistrate. 14. In this case, notice under Section 251 Cr.PC. has already been framed against the petitioner and she has pleaded not guilty and claimed trial. An application under Section 145(2) of the NI Act filed by the petitioner was allowed. The Authorized Representative of the complainant has already been cross-examined by the counsel for the petitioner and was discharged. 15. Now, coming to the jurisdiction, suffice it to say that the Court, in exercise of its jurisdiction under Section 482 Cr.PC. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. The issues involving facts raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution s/complainant s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so, the defence raised by the petitioner in the petitions requires oral as well as documentary evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC. 21. The bare assertions of the learned counsel for the petitioner that the petitioner has already paid the amount or the respondent has already received or realized the cheque amount or the cheques are without consideration as well as the other contentions raised in the petitions, are only bald submissions at this stage which are required to be proved by way of oral and documentary evidence on record, by the petitioner. This Court, at this stage, neither can interfere nor can intervene nor can quash the proceedings pending before the Trial Court. 22. Accordingly, I find no flaw or infirmity in the proceedings pending before the Trial Court. However, the Trial Court shall certainly consider and deal with the contentions and the defence of the petitioner in accordance with law. The prayers are untenable in law. Hence, this Court does not deem it appropriate to is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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