TMI Blog2020 (1) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to step into the shoes of the Metropolitan Magistrate and examine their defence first and exonerate them. The High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of accused, as to why he should not be tried under Section 138 of the NI Act. The offence under Section 138 of the NI Act is an offence in the personal nature of the complainant and since 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 the 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 defence is on the accused - Sections 143 and 145 of the NI 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 affidavits and documents. Thus, an accused who considers that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Complaint No. 16819 of 2017 for the reasons set out in the present petition. (c) Set aside the impugned order dated 25.10.2019 passed by the Ld. ASJ, Patiala House in Criminal Revision Case 230/2019. (d) Set aside the order dated 19.12.2017 passed by Ld. MM- 4/PHC Patiala House in CC No. 16819 of 2017. 2. The respondent herein had instituted a complaint under section 138 read with section 142 of the Negotiable Instruments Act 1881 against the petitioners herein in respect of non-payment against the eleven dishonoured cheques for the total amount of ₹ 19,00,00,000/- (Rupees Nineteen crores only) issued on behalf of and by petitioner company in favour of the respondent company. 3. The Metropolitan Magistrate vide his order dated 19.12.2017 held as follows : From perusal of complaint and documents attached, prima facie offence U/s 138 r/w Section 141 of NI Act, 1881 is made out. Accordingly, cognizance of offence is taken. CW-01 AR of complainant, Sh. Manav Arora has tendered pre-summoning evidence by way of affidavit. At the request of AR of complainant, PSE is closed. Heard on issuance of process. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code. 8. In Kailash Verma vs. Punjab State Civil Supplies Corporation Anr., (2005) 2 SCC 571, the Supreme Court observed thus :- 5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326 : 1999 SCC (Cri) 1118] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case, but as to whether the impugned order bring about a situation which is an abuse of process of court or there was serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limave v. State of Maharashtra(1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305 : AIR 1979 SC 87, Rai Kapoor v. State (Delhi Administration)1980 Cri. L.J. 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571. (emphasis supplied) 11. Now coming to the other legal position in this case and taking into consideration the various provisions of Cr.PC which have been discussed in various judgments time and again demonstrate that the Negotiable Instruments Act, provides suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses 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 accused wants to recall the witnesses and on what point the witnesses are to be cross examined 13. The offence under Section 138 of the NI Act is an offence in the personal nature of the complainant and since 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 the 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 defence is on the accused. 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 exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 146 of the Act. 18. The provisions of Sections 142 to 147 lay down a Special Code for the trial of offences under the Chapter XVII of the N.I. Act. While considering the scope and ambit of the amended provisions of the Act, the Supreme Court in Mandvi Co. Op. Bank Ltd. v. Nimesh B. Thakore , AIR 2010 SC 1402, has held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Cr.PC, the main body of adjective law for criminal trials. The Supreme Court has further held as under:- 17. It is not difficult to see that sections 142 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. 19. The parameters of the jurisdiction of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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