9911796707
TMI Blog2023 (11) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... for the amount of Rs. 5,82,217/-issued by petitioner in favour of the respondent. 3. The Metropolitan Magistrate vide Order dated 03.03.2023 issued summons under Section 138 of Negotiable Instruments Act, 1881 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 on 21.11.2014, one Bill bearing no. 433 of Rs. 5,82,217/-was given to the petitioner from the respondent's firm and the impugned blank cheque was issued to the respondent for the purpose of security, not in discharge of any existing legally recoverable debt or liability as alleged by the respondent. He further submitted that the said cheque was misused by the respondent herein and even after newspaper publication dated 23.06.2022 and receiving Legal Notices dated 13.08.2022 and 22.08.2022, the cheque in question was not returned by the respondent to the petitioner. He further submitted that the said amount has been duly paid by the petitioner which is evident from the bank statements as well as the ledger account maintained by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of the Metropolitan Magistrate and entertain a plea of accused, as to why he should not be tried under Section 138 of the N.I. Act. This plea, as to why he should not be tried under Section 138 of the N.I. 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. 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 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-examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner in these petitions 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. 11. In Sripati Singh (since deceased) Through His Son Gaurav Singh vs. State of Jharkhand & Anr., Criminal Appeal No. 1269-1270 of 2021 (Arising out of SLP (CRL) No. 252-253 of 2020), decided by the Hon'ble Supreme Court on 28.10.2021, it is observed and held as under: "16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rule when a cheque is issued for security is that between the date on which the cheque is drawn to the date on which the cheque matures, the loan could be repaid through any other mode. It is only where the loan is not repaid through any other mode within the due date that the cheque would mature for presentation; and (iii) If the loan has been discharged before the due date or if there is an 'altered situation', then the cheque shall not be presented for encashment." 13. In view of the above, as far as the contention of the Ld. Counsel for the petitioner that the petitioner had issued blank cheque to the respondent for the purpose of security has no force in it as it is trite law that when a cheque given for the purpose of security is dishonoured, Section 138 of the Negotiable Instruments Act, 1881 will be attracted. 14. Moreover, it is further contended by the Counsel for the petitioner that the cheque in question has been misused by the respondent as the same was not returned by the respondent to the petitioner even after newspaper publication dated 23.06.2022 and Legal Notices dated 13.08.2022 and 22.08.2022 regarding the closure of bank account of M/s Hindustan A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
