TMI Blog2013 (11) TMI 1806X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 27th September 2010, 743780 dated 24th September, 2010, 744724 dated 28th September, 2010 and 743798 dated September 25th September, 2010 for Rs. 10 lacs each drawn on Bank of Baroda, Faridabad to respondent No. 2 in part discharge of the above liability. (ii) Respondent No. 2 presented the above mentioned four cheques to Bank of Baroda, Mayur Vihar, Phase-I. However, all four cheques were returned as unpaid for reason account closed whereupon respondent No. 2 issued a legal notice dated 25th October, 2010 to the petitioners. (iii) On 10th December, 2010, respondent No. 2 instituted a complaint under Section 138 of the Negotiable Instruments Act before the learned Chief Metropolitan Magistrate, Karkardooma Courts relating to dishonour of aforesaid four cheques for Rs. 10 lacs each. (iv) The learned Metropolitan Magistrate took on record the pre-summoning evidence of the complainant by way of affidavit on 24th February, 2011. Mr. B.K. Gupta, power of attorney holder of respondent No. 2 deposed in the evidence by way of affidavit that the petitioner handed over four cheques, Exs.PW-1/1 to P W-1/4 for Rs. 10 lacs each to respondent No. 2 in part discharge of legal liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : [2013 ALL SCR 2531]. Inquiry under Section 202 Cr.P.C. 5. Second ground of challenge is that the learned Metropolitan Magistrate has not conducted any inquiry or investigation in terms of Section 202 Cr.P.C. There is no merit whatsoever in this ground as the learned Metropolitan Magistrate took into consideration the evidence by way of affidavit of the complainant and the documentary evidence on the basis of which prima facie case was made out against the petitioners and no further enquiry was warranted in the matter. This case is squarely covered by Abhishek Agrawalla v. Boortmalt NV, (2011) 122 DRJ 42, in which this Court held as under: 3. The only ground pressed during arguments of this petition assailing order of learned MM is that the order was bad in law in view of the fact that the trial court failed to comply with the provisions of Section 202 Cr.P.C whereunder the trial court was supposed to postpone the issue of process and was to conduct an inquiry either himself or direct investigation to be made by the police officials into the allegations since the accused was residing at a place beyond the area in which the trial court had jurisdiction. 4. It is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hone was standing. This would enable the Magistrate to find out if there was credibility in the statement given by the complainant. The Magistrate can summon the officials of service provider telephone company and make this enquiry himself. Similarly there may be a case where a person alleges that while he was at X place, Y a resident of other State had come there and beaten him or abused him or threatened him or caused injuries to him etc. The person produces his MLC and makes an oral statement. The court in such a case, if the accused is of outside his jurisdictional area, would have to get an enquiry made through police if the accused was living at the address given and if the accused had visited the place where it was alleged that he had beaten or threatened. The Magistrate can also get a fact finding enquiry done from police of that State or police of his own State. However, where the commission of offence is disclosed only from the documents, no further enquiry except scrutinizing the documents proved before the court by testimony of complainant is feasible, I consider that the enquiry envisaged under Section 202 Cr.P.C. in such cases is an enquiry by way of recording stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have fallen upon on mere perusal of the complaint and consideration of complainant s evidence on oath. 10. The Supreme Court further observed that the enquiry under Section 202 is of a limited nature. Firstly it is to find out whether there was a prima facie case against a person accused of the offence in the complaint and secondly to prevent the issuance of process in all such complaints that are false or intended only to harass a person. In Kewal Krishan v Suraj Bhan 1980 Supp. SCC 499, the Supreme Court observed that what the Magistrate has to do is to see whether on a cursory perusal of the complaint of the complaint and the evidence recorded under preliminary enquiry under Section 200 and 202 Cr.P.C. there is prima facie evidence in support of the charges leveled against the accused. About use of the word shall in the proviso to sub section 2, the Supreme Court made following observations: 17. At initial stage, if objection is raised and it is found by the Sessions Court that by non-holding of inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all Sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established. 11. I, therefore, consider that in the present case where disclosure of commission of offence was based on documentary evidence produced by the complainant before the court and from the documents it was prima facie clear that a commission of offence under Section 420 IPC has taken place, no further enquiry could have been held by the Magistrate. xxx xxx xxx 13. In Rosy v State (supra) the Supreme Court also agreed with the submission of counsel for the appellant that the provisions under Section 465 Cr.P.C. would play a role at any stage and observed as under: 18. Further, the aforesaid interpretation would be in consonance with Chapter XXXV of the Cr.P.C., which deals with irregularities in the proceedings, which may or may not vitiate the proceedings. Sections 460 and 461 provide which irregularities would or would not vitiate the proceedings. In these sections, there in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 139 before the learned Metropolitan Magistrate at an appropriate stage. Section 482 Cr.P.C. cannot be invoked by the petitioner to rebut the legal presumption. Reference may be made to Hiten P. Dalai v. Bratindranath Banerjee, 2001 (6) SCC 16 : [2001 ALL MR (Cri) 1497(S.C.)], MMTC Ltd. v. MEDCHL Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 : [2002 ALL MR (Crl) 230 (S.C.)] and Maruti Udyog Ltd. v. Narender, (1999) 1 SCC 113. More than three Cheques clubbed in a Complaint under Section 138 Negotiable Instruments Act 7. The last ground of challenge by the petitioners is that more than three cheques cannot be clubbed in proceedings under Section 138 of Negotiable Instruments Act. There is no merit in this contention as the cause of action for filing a complaint under Section 138 of the Negotiable Instruments Act is the service of notice under Section 138 of the Negotiable Instruments Act and not the dishonour of cheques. In the present case, the complainant issued one notice of dishonour, Ex.PW1/12, in respect of four dishonoured cheques issued by the petitioner and therefore, Section 219 Cr.P.C. would not be applicable. This case is squarely covered by the following jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wyer's notice demanding payment of the amount towards all the dishonoured cheques be covered by Section 220(1) Cr.P.C. and hence is saved from the mischief of Section 219 Cr.P.C. The relevant portion of the said judgment is reproduced hereunder:- 12. The abovesaid 16 cheques were drawn on different dates and they were for different amounts, but, they were presented together for payment and were dishonoured and a single notice was sent by the complainant to the drawer. The general rule is that every distinct offence of which a person is accused, there shall be separate charge and every such charge shall be tried separately. As observed by the Division Bench of the Kerala High Court in 1996 (3) Cri 283, Section 219 Cr.P.C. is an exception to the general rule. As stated earlier, even though different cheques were given on different dates, the presentation of all those cheques formed the same transaction. Further, the demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands for the payment of the dishonoured cheques. In those circumstances, we are of the view that the petitioner/accused herein may be cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands, we are of the view that the accused may be charged and tried at one trial for several such offences because the series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonouring the cheques, therefore, it cannot be said that the complaint is vitiated. 8. Same view has also been taken by this Court in Sharma Contracts (India) Pvt. Ltd. v. State Anr., (2012) 1 MWN (Crl.) DCC 105 which may also be referred to. This petition is gross abuse and misuse of process of law 9. In Rajesh Aggarwal v. State, 2010 (171) DLT 51, this Court noted that the High Court is flooded with petitions under Section 482 Cr.P.C. for challenging the summoning order passed by the Magistrate under Section 138 of the Negotiable Instruments Act. This Court further noted that the accused rush to the High Court on mere passing of summoning order and are successful in halting the proceedings before the Magistrate on one or the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given by way of affidavit which shall be read in evidence. 2.2 Cognizance of the offence to be taken on the basis of affidavit and documents The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. 2.3 Complainant not required to examine himself twice The complainant is not required to examine himself twice i.e. once after filing the complaint and second after summoning of the accused. 2.4 Complainant not required to be recalled unless a specific order of Magistrate under Section 145(2) of Negotiable Instruments Act The complainant is not required to be recalled and re-examined after summoning of accused unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of N.I. Act suo moto by the Court. 3. Summary Procedure under Section 260 to 265 Cr.P.C. 3.1 In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) of Cr.P.C. and hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of N.I. Act, which provides summary trial of offence in terms of Cr.P.C. 4.2.2 Under Section 263(g) of Cr.P.C., the court has to record the plea of the accused and his examination. It is thus obvious that in a trial of an offence under Section 138 of N.I. Act, the accused cannot simplicitor say I plead not guilty and wants to face trial. 4.2.3 Since offence under Section 138 of N.I. Act is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court. 4.3 Accused cannot appear before High Court without appearance and disclosure of defence before the Magistrate 4.3.1 If the accused does not appear before the Court of Magistrate on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of Magistrate as the High Court cannot usurp the powers of Magistrate and entertain a plea of accused why he should not be tried under Section 138. 4.3.2 The plea as to why he should not be tried u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our 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. 4.4.5 The proper procedure to be followed by Magistrate is that soon after summoning, the accused must be asked to disclose his defence and his plea should be recorded. 4.4.6 Where an accused takes no defence and simply says I am innocent , there is no reason for the Magistrate to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. 4.5 In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of pleasure 4.5.1 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 examine the witness(e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pletion of service of all the accused? I consider that summary trial leaves no option to the court. The whole purpose of summary trial shall stand defeated if the court of Magistrate tells the accused persons, who have been served, to come to the court repeatedly till the other accused are served. The plea of the accused is to be recorded on the day of his appearance under the summary trial and if that accused gets his plea recorded, he is at liberty to lead evidence in support of his plea and the court cannot tell him to keep coming repeatedly either in person or through counsel due to non appearance of other accused persons. The court, in such a case, asks him to disclose his defence and to prove his defence. In case court feels that the case should not be tried summarily and all the accused persons must necessary be tried together, then alone the court should ask the accused to wait but if the accused/respondent has a valid defence to show that he need not face trial because of a specific defence and he was prepared to lead evidence to this effect, he should be directed to lead evidence in support of his plea. 4.7 Settlement by the accused Along with the notice of appearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve also not chosen to disclose their defence before this Court. 10.3 In para 2 of the petition, the petitioners have stated that the petitioners got the supplies from the respondent at Faridabad; the respondent issued the invoices in respect of the supplies at Faridabad office and each and every transaction took place at Faridabad. The petitioners further stated that the petitioners gave blank cheques to the respondent in good faith and against security in the month of September - October, 2009 and there is no debt or liability. However, the petitioners have failed to disclose the particulars of the sale transactions, invoices and supplies between the parties. As such, the petitioners are guilty of concealment of the true and relevant facts. Imposition of Costs 11. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. The cost should be equal to the benefits derived by the litigants, and the harm and deprivation suffered by the rightful person so as to check the frivolous litigations and prevent the people from reaping a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. (Emphasis supplied) 11.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 (3) SCALE 550 : [2012 ALL SCR 1096], the Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences as under:- 85. This Court in a recent judgment in Ramrameshwari Devi and Ors. (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is real gain. This situation must be redeemed by the Courts. (Emphasis supplied) Conclusion 12. There is no merit in this petition. This petition amounts to gross abuse and misuse of process of law. The petitioners have succeeded in delaying the complaint before the Metropolitan Magistrate for more than two years. The petition is consequently dismissed with cost of Rs. 30,000/-. The cost ..... X X X X Extracts X X X X X X X X Extracts X X X X
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