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2019 (11) TMI 226

..... THAT:- In terms of Section 143 NI Act, subject to the proviso, as per normal rule, the proceedings under Section 138 of Negotiable Instrument Act are summary in nature. On appearance of the accused, the Magistrate is required to explain the substance of accusation to the accused and ask him whether he would plead guilty or has any defence to make, however in terms of the mandate of the Section, it would not be necessary to frame a formal notice. Looking at the issue from another angle as to whether any failure of justice has occurred on account of non framing of formal Notice under Section 251 CrPC by the trial court on 20.12.2016. In this regard, it is profitable to refer to Section 464 CrPC which provides that “no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has been occasioned thereby”. Thus, as per mandate of the section 251 CrPC, no formal notice is required to be framed so long as the substance of the accusation .....

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..... exempted and complete set of documents were given and the matter was posted for appearance and notice of the accused. On 18.11.2016 the counsel for both parties were present and they sought for referring for the Mediation Centre. On 20.12.2016 it was recorded that the mediation failed and counsel for accused sought time for filing application u/s 145 (2) N.I. Act. On 20.01.2017 no application u/s 145 (2) N.I. Act filed and therefore opportunity to cross examine the complainant witnesses was closed. 3. It is also worthwhile to mention that subsequently the similar application u/s 145(2) N.I. Act was moved which was dismissed vide order dated 25.03.2017 and the matter was posted for S.A./DE. The revisionist had preferred the revision petition u/s 482 Cr.P.C against the order of Ld. ACMM whereby his right to cross-examination was closed. The same was dismissed by Hon ble High Court of Delhi on 04.01.2018. Thereafter, the matter was listed for DE and on 05.12.2018 right to accused to lead DE was closed and matter was posted for final arguments, thereafter, the present revision petition was moved. 6. It is the case of the petitioner that the trial court did not frame any formal notice .....

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..... ndate of the Section, it would not be necessary to frame a formal notice. 13. It has neither been pleaded nor argued before this Court that when the petitioner appeared, the Magistrate did not state the substance of the accusation to him or did not ask whether he pleaded guilty or wished to lead any defence evidence. The only argument raised now is that on that date, no formal notice under Section 251 CrPC was framed by the Magistrate. 14. Looking at the issue from another angle as to whether any failure of justice has occurred on account of non framing of formal Notice under Section 251 CrPC by the trial court on 20.12.2016. In this regard, it is profitable to refer to Section 464 CrPC which provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has been occasioned thereby . 15. In Sanichar Sahni Vs. State of Bihar reported as (2009) 7 SCC 198, it was held as under:- 25. A Constitution Bench of this Court in Willie (Willia .....

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..... , when the case was taken up by the trial court, the petitioner was fully aware of the case against him as it has not been argued that on that date, the trial did not state the substance of accusation to the accused. Rather, at request of the counsel for the accused, time was granted to file an application under section 145(2) N.I. Act. 18. In my opinion, as per mandate of the section 251 CrPC, no formal notice is required to be framed so long as the substance of the accusation is stated and the accused is asked whether he pleads guilty or intent to lead any defence evidence. During the course of arguments, learned counsel for the petitioner has failed to point out as to what prejudice has been suffered on account of non-framing of a formal notice. 19. It is relevant to note that the petitioner had approached this court on an earlier occasion as well vide CRL.M.C. 4463/2017 where he challenged the order dated 20.12.2016, i.e., the same order which is again impugned herein, on the ground that his right to cross-examine the complainant was closed. The aforesaid petition came to be dismissed on 04.01.2018. While noting the conduct of the petitioner, it was held as under:- 8. Keeping i .....

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