TMI Blog2022 (4) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... nter his plea of defence and fix the case for defence evidence, unless an application is made under Section 145(2) of N.I. Act for recalling a witness for cross-examination on by an accused of defence - 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.P.C., 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. In the instant case the respondent no. 2/complainant in his complaint under Section 138 and 142 of N.I. Act has made specific averments that the Accused No.1 is a Partnership Firm and through its proprietor approached the Complainant for providing shuttering material and requested the complainant to supply the said materials to the Accused. The Accused in order to partly liquidate the outstanding amount and towards the legally enforceable debt, which has been due and payable to the complainant, issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the petitioner with the following prayers:- A. QUASH the Criminal Complaint no. CCNI Act/4519/2021 filed by the respondent under Section 138 of the Negotiable Instruments Act and pending before the court of the learned Chief Metropolitan Magistrate, South-East, Saket, New Delhi; B. QUASH the summoning order dated 31.08.2021 passed by the learned Chief Metropolitan Magistrate, South-East, Saket, New Delhi in Criminal Complaint No. CC NI Act/$519/2021; C. Pass any other and/or further order(s) as this Hon ble Court may deem fit and proper in the facts and circumstances of the present case and in the facts and circumstances of the present case and in the interest of justice. 2. The brief facts of the case are that petitioner hererin is a proprietorship and is a civil and structural contractor carrying on its business in various states of the country. The petitioner and the respondent entered into an agreement dated 17.01.2019 whereby petitioner agreed to hire shuttering and scaffolding material from the respondent initially for a period of six months. As per the Clause 5 of this Agreement, the petitioner was required to provide undated security cheque to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand being made by the respondent. It is further submitted that the complaint is based on false averment which is evident from sterling quality documents. Further, three cheques were given as the part of five cheques given by the petitioner to the respondent as security cheques and Clause 5 of the Agreement between the parties clearly states that the security cheques were given only to cover the cost of the materials supplied by the respondent, neither the proprietor nor any other person has been named as an accused in the complaint filed by the respondent. It is further submitted that respondent has not approached Court with clean hands as in the first complaint filed against the petitioner, Ushmeet Singh is described as a director of the respondent and board resolution of the board of directors has authorized him. However, in the present complaint, he has been shown as the partner of the respondent and two partners have authorized him to file the complaint, hence, two authorization is not correct. 5. Now coming to the legal position in this case and taking into consideration the various provisions of Cr.P.C. which have been discussed in various judgments time and again demons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the N.I. 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 accused wants to recall the witnesses and on what point the witnesses are to be cross examined. 7. The offence under Section 138 of the N.I. 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 defense and the burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defense, he is still to be considered innocent. If an accused has a defense against dishonor of the cheque in question, it is he alone who knows the defense and responsibility of spelling out this defense to the Court and then proving this defense is on the accused. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonor of cheque, issuance of demand notices etc., he can be cross-examined only if the accused makes an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legally enforceable debt, which has been due and payable to the complainant, issued a cheque, which was dishonored. 11. Now, coming to the jurisdiction, suffice it to say that the Court, in exercise of its jurisdiction under Section 482 Cr.P.C. 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.P.C. at this stage. 12. Upon analyzing the provisions of the N.I. 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. These ingredients 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 N.I. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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