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TMI Blog2020 (2) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 2. The respondent herein had instituted a complaint under section 138 Negotiable Instruments Act 1881 read with Section 420 IPC against the petitioner herein in respect of non-payment against one dishonoured cheque for the amount of Rs. 65,00,000/- issued by petitioner in favour of the respondent company. 3. The Metropolitan Magistrate issued summons dated 19/08/2019 U/s 138 NI Act requiring the petitioner to attend the Court. 4. The petitioner feeling aggrieved, filed the present petition invoking jurisdiction of this Court U/s 482 Cr.P.C. 5. It has been mainly argued by the Ld. counsel for the petitioner that there are no dues towards anyone as the respondent has received the entire amount. He further argued that criminal colour ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 263(g) of the Cr.PC. Along with this plea, he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of the NI Act to recall the complainant to crossexamine 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. 7. 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 defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amined only if the accused makes an application to the Court as to, on what point he wants to cross examine the witness(es) and then only the Court shall recall the witness by recording reasons thereto. 9. 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 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, he can also file an application for recalling any of the witnesses for cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents and conditions are to be satisfied mainly on the basis of documentary evidence, keeping in mind the presumptions under Sections 118 and 139 of the NI Act and Section 27 of the General Clauses Act, 1897 as well as the provisions of Section 146 of the Act. 13. 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Anr"., Criminal Appeal No. 175 of 2020 (Arising out of SLP (Criminal) No. 172 of 2017) decided by the Hon'ble Supreme Court on January 31, 2020 in which it has been held that "the power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in Court of law".
15. 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.
16. The prayers are untenable in law. Hence, this Court does not deem it appropriate to issue notice to the respondent. Accordingly, the petition is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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