9911796707
TMI Blog2020 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... is disposed of accordingly. CRL.M.C. 1272/2020 & CRL.M.A. 4913/2020 1. The petitioner has filed the present petition u/s 482 of the Cr.P.C. with the prayer to quash the impugned order dated 19.11.2018 passed by the Ld. MM-03 NI Act/SE/ND District Courts, Saket in criminal complaint bearing No. 7727/2018 titled as "Vipin Kumar Singh Vs. Mayank Chawla & Anr." and other consequential proceedings arising out of and related to the same. 2. The respondent No. 2 herein had instituted a complaint under section 138 read with sections 141/142 of the Negotiable Instruments Act, 1881 against the petitioner herein and M/s Skytech Constructions Pvt. Ltd. through its Director Sh. R.K. Chawla in respect of non-payment against one dishonoured cheque for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure of law, as provided under the NI Act and the Cr.PC, and further, by misreading of the provisions, such parties consider that the only option available to them is to approach the High Court and on this, the High Court is made 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. This plea, as to why he should not be tried under Section 138 of the NI Act is to be raised by the accused before the Court of the Metropolitan Magistrate under Section 251 of the Cr.PC & under Section 263(g) of the Cr.PC. Along with this ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. Upon analyzing the provisions of the NI Act, it is clear that Section 138 of the Act spells out the ingredients of the offence as well as the conditions required to be fulfilled before initiating the prosecution. 12. These ingredients and conditions are to be satisfied mainly on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired in its exercise. The requirement is, the application of well known legal principles involved in each and every matter. Adverting back to 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 as raised by the petitioners in the petition requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC and the same can only be proved in the Court of law. Reliance can be placed upon "State of Madhya Pradesh Vs. Yogendra Singh Jadon & Anr"., Criminal Appeal No. 175 of 2020 (Arising out of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
