TMI Blog2021 (3) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... hat negotiations had taken place with him along with other co-accused persons and they were prima facie aware about the whole series of transaction. After all, it was not small amount that was being invested and it was because of the parties being acquainted with each other that the whole transaction materialized. 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 - 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. The parameters of the jurisdiction of the High Court in exercising jurisdiction under Section 482 Cr.P.C, are now almost well-settled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2 crores on or before March-2019 and that MoU dated 26.07.2018 was executed, whereby accused persons undertook to pay the complainant a sum of Rs.47,53,519/- and a cheque was also issued; and that later MoU dated 05.05.2019 was executed and it was promised that the complainant would be made a partner in the business and receipt of Rs. 50 lacs as principal amount was retained with the promise that it would be safe and secure with them and it would become Rs. 2 crores in 2019: and that on 18.02.2019 another Promissory Note was issued by accused No.2/ Guneet Bhasin in favour of the complainant and his wife acknowledging liability to pay an amount of Rs. 2,47,53,000/- payable to the complainant and his wife on or before 30.06.2019. 3. On 16.07.2019 nine cheques were issued in the tune of Rs. 73,00,000/-. The said cheques on presentation were dishonored, and while cheque at Sr No. 1 was dishonored for the reasons account closed , the bank returning memos in respect of other cheques from Sr. Nos. 2 to 9 came with the remarks kindly contact drawer . 4. On receipt of such returning memos dated 17.07.2019, Respondent No 2 served a legal notice dated 12.08.2019 upon the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file the Complaint u/s 138 of the Act, it is submitted the payee in the cheques is the wife of the complainant and she has duly authorized her husband to file the present complaint. Further the complainant has submitted his affidavit in the Court to the effect that she is personally aware of all the facts and circumstances of the case. Counsel for the Respondent No. 2 has relied upon: a. A.C Narayan v. State of Maharashtra Anr. Cr. Appeal No. 73 of 2007 b. Rajesh Agarwal v. State 2010 SCC Online Del 2501 c. Nandhini v. Vinayaga Textiles 2015 SCC Online Mad 8304 d. Monaben Ketanbhai Shah Anr. v. State of Gujrat Ors. (2004) 7 SCC 15 e. N. Rangachari v. BSNL (2007) 5 SCC 108 f. A. R. Radha Krishna v. Dasari Deepthi Ors. (2019) 15 SSC 550 9. 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 demonstrate that the Negotiable Instruments Act, provides sufficient opportunity to a person who issues the cheque. Once a cheque is issued by a person, it must be honored and if it is not honoured, the person is given an opportunity to pay the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants to recall the witnesses and on what point the witnesses are to be cross examined. 11. 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 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 (es) and then only the Court shall recall the witness by recording reasons thereto, 12. Sections 143 and 145 of the N.I. Act were enacted by the Parliament w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Ld. Counsel for the petitioner that Summy Bhasin never participated in any negotiations with the complainant cannot be considered at this preliminary stage since such defense can only be considered during the stage of trial. 15. The prosecution under section 138 of the Act can be launched for vicarious liability against any person, who at the time of commission of offence was in charge and responsible for the conduct of the business of the accused company. Merely because the petitioner did not sign the cheques in question, is not decisive for launching prosecution against him. The plea of the petitioner that the offences were committed without his knowledge cannot be considered at this stage considering the fact that the Complainant has specifically averred that negotiations had taken place with him along with other co-accused persons and they were prima facie aware about the whole series of transaction. After all, it was not small amount that was being invested and it was because of the parties being acquainted with each other that the whole transaction materialized. Reference can also be made to a decision in the case A. R. Radha Krishna (supra), wherein their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 1402, has held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Cr.P.C, 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. 21. The parameters of the jurisdiction of the High Court in exercising jurisdiction under Section 482 Cr.P.C, are now almost well-settled. Although it has wide amplitude, but a great deal of caution is also required in its exercise. The requirement is the application of well-known legal principles involved in each and every matter Adverting back the facts of the present case, this Court d ..... 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