Delhi High Court
Maa Tarini Industries Limited & Anr. vs Pec Limited on 20 January, 2020
Author: Rajnish Bhatnagar
Bench: Rajnish Bhatnagar
$~59
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 20.01.2020
+ CRL.M.C. 254/2020
MAA TARINI INDUSTRIES LTD. & ANR.
.... Petitioners
Through Mr. J.P. Sengh (Sr. Adv.) with Mr.
Akhil Chabra, Ms. Udisha Sahay,
Ms. Ritu Chabra, Mr. Shashi Pratap
Singh and Mr. Raj Srivastava, Advs.
versus
PEC LIMITED
..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
RAJNISH BHATNAGAR J. (ORAL)
CRL. M.A. 1108/2020
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL.M.C. 254/2020 & CRL. M.A. 1107/2020
CRL. M.C. 254/2020 Page 1 of 11
1. The petitioners have filed the present petition u/s 482 of the Cr.P.C.
with the following prayer:
(a) Call for the record of CC No. 16819 of 2017.
(b) Quash the Complaint No. 16819 of 2017 for the reasons set
out in the present petition.
(c) Set aside the impugned order dated 25.10.2019 passed by
the Ld. ASJ, Patiala House in Criminal Revision Case
230/2019.
(d) Set aside the order dated 19.12.2017 passed by Ld. MM-
4/PHC Patiala House in CC No. 16819 of 2017.
2. The respondent herein had instituted a complaint under section 138
read with section 142 of the Negotiable Instruments Act 1881 against the
petitioners herein in respect of non-payment against the eleven dishonoured
cheques for the total amount of Rs. 19,00,00,000/- (Rupees Nineteen crores
only) issued on behalf of and by petitioner company in favour of the
respondent company.
3. The Metropolitan Magistrate vide his order dated 19.12.2017 held as
follows :
"From perusal of complaint and documents attached, prima
facie offence U/s 138 r/w Section 141 of NI Act, 1881 is made
out. Accordingly, cognizance of offence is taken.
CW-01 AR of complainant, Sh. Manav Arora has tendered
pre-summoning evidence by way of affidavit. At the request of
AR of complainant, PSE is closed.
CRL. M.C. 254/2020 Page 2 of 11
Heard on issuance of process.
Material on record suggest sufficient ground to proceed
further. Accordingly, issue summon to the accused, subject to
filing PF/RC within thirty days from today. Summons be sent for
service through all permissible modes.
Put up for further proceeding on 25.09.2018."
4. The petitioners feeling aggrieved invoked the revisional jurisdiction
of the Court of Sessions and questioned the correctness, legality and
proprietary of the said order. But their criminal revision petition bearing No.
230/2019 was dismissed by the Ld. A.S.J. vide impugned order dated
25.10.2019 which is now challenged by the petitioners, invoking
jurisdiction of this Court U/s 482 Cr.P.C.
5. The main thrust of the arguments of the counsel for the petitioners is
that the notice issued on 2 March, 2017 is defective as the demand has been
made over and above the cheque amount and the legal demand notice is
vague and ambiguous, so the notice being defective, the complaint is liable
to be dismissed. He has relied upon :
a. Suman Sethi V. Ajay K. Churiwal and Anr. (Supreme Court
2000) AIR 2000 SC 828 (Para 6 & 8)
b K.R. Indira V Dr. G. Adinarayana (Supreme Court 2003) AIR 2003
SC 4689 (para 7-11)
c. M/s Rahul Builders V M/s Arihant Fertilizers & Anr. (Supreme
Court 2007) (2008) 2 SCC 321 (Para 11-12)
6. Before proceeding to consider the contentions of the petitioners, a
procedural issue has arisen, as to whether the petitioners having availed of
the remedy of revision should be allowed to take recourse to section 482
CRL. M.C. 254/2020 Page 3 of 11
Cr.P.C as a substitute for virtually initiating a second revisional challenge
or scrutiny which is clearly barred U/s 397 (3) Cr.P.C which reads as
follows :
"(3) If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by
the other of them."
7. In Rajinder Prasad Vs. Bashir, (2001) 8 SCC 522, the Supreme
Court referring to its earlier decision in Krishnan Vs. Krishnaveni, (1997) 4
SCC 241 held that :
"...though the power of the High Court under Section 482 of the
Code is very wide, yet the same must be exercised sparingly and
cautiously particularly in a case where the petitioner is shown to
have already invoked the revisional jurisdiction under Section
397 of the Code. Only in cases where the High Court finds that
there has been failure of justice or misuse of judicial mechanism
or procedure, sentence or order was not correct, the High Court
may, in its discretion, prevent the abuse of the process or
miscarriage of justice by exercise of jurisdiction under Section
482 of the Code. It was further held, "Ordinarily, when revision
has been barred by Section 397(3) of the Code, a person -
accused/complainant - cannot be allowed to take recourse to the
revision to the High Court under Section 397(1) or under
inherent powers of the High Court under Section 482 of the
Code since it may amount to circumvention of provisions of
Section 397(3) or Section 397(2) of the Code."
8. In Kailash Verma vs. Punjab State Civil Supplies Corporation &
Anr., (2005) 2 SCC 571, the Supreme Court observed thus :-
"5. It may also be noticed that this Court in Rajathi v. C.
Ganesan [(1999) 6 SCC 326 : 1999 SCC (Cri) 1118] said that
CRL. M.C. 254/2020 Page 4 of 11
the power under Section 482 of the Criminal Procedure Code
has to be exercised sparingly and such power shall not be
utilised as a substitute for second revision. Ordinarily, when a
revision has been barred under Section 397(3) of the Code, the
complainant or the accused cannot be allowed to take recourse
to revision before the High Court under Section 397(1) of the
Criminal Procedure Code as it is prohibited under Section
397(3) thereof. However, the High Court can entertain a petition
under Section 482 of the Criminal Procedure Code when there is
serious miscarriage of justice and abuse of the process of the
court or when mandatory provisions of law are not complied
with and when the High Court feels that the inherent jurisdiction
is to be exercised to correct the mistake committed by the
revisional court."
(emphasis supplied)
9. The arguments of the Ld. counsel for the petitioners that notice is
confusing qua the amount claimed and there is an ambiguity, in my opinion,
the Ld. revisional Court has rightly held that notice is to be read as a whole.
The perusal of the notice clearly set out the details of the cheque which
have been dishonoured, so it cannot be said that the demand made is
ambiguous or in any way confusing the petitioners as there is no denial that
the cheuqe in question were not issued or that they were not dishonoured
for insufficient funds. There is no dispute with regard to the propositions of
law laid down in the judgments "supras" relied upon by the Ld. counsel for
the petitioners but with due regards, the same are not applicable to the facts
of the present case.
10. A learned single judge of this court in Surender Kumar Jain vs. State
& Anr., ILR (2012) 3 Del 99 accepted such objections in another similarly
placed petition under Section 482 Cr. PC observing thus :-
CRL. M.C. 254/2020 Page 5 of 11
"5. The issue regarding filing of petition before the High
Court after having availed first revision petition before the
Court of Sessions has come up before the Supreme Court and
this Court repeatedly. While laying that section 397(3) Cr.
P.C. laid statutory bar of second revision petition, the courts
have held that High Court did enjoy inherent power under
section 82 (sic) Cr. P.C. as well to entertain petitions even in
those cases. But, that power was to be exercised sparingly and
with great caution, particularly, when the person approaching
the High Court has already availed remedy of first revision in
the Sessions Court. This was not that in every case the person
aggrieved of the order of the first revision court would have
the right to be heard by the High Court to assail the same
order which was the subject matter of the revision before
Sessions Court. It was all to depend not only on the facts and
circumstances of each case, but as to whether the impugned
order bring about a situation which is an abuse of process of
court or there was serious miscarriage of justice or the
mandatory provisions of law were not complied with. The
power could also be exercised by this Court if there was an
apparent mistake committed by the revisional court.
Reference in this regard can be made to the judgments of the
Supreme Court in Madhu Limave v. State of
Maharashtra(1977) 4 SCC 551, State of Orissa v. Ram
Chander Aggarwal, (1979) 2 SCC 305 : AIR 1979 SC 87, Rai
Kapoor v. State (Delhi Administration)1980 Cri. L.J. 202,
Krishnan v. Krishnaveni and Kailash Verma v. Punjab State
Civil Supplies Corporation (2005) 2 SCC 571."
(emphasis supplied)
11. Now coming to the other legal position in this case and taking into
consideration the various provisions of Cr.PC 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 honoured
CRL. M.C. 254/2020 Page 6 of 11
and if it is not honoured, the person is given an opportunity to pay the
cheque amount by issuance of a notice and if he still does not pay, he is
bound to face the criminal trial and consequences. It is seen in many
cases that the petitioners with malafide intention and to prolong the
litigation raise false and frivolous pleas and in some cases, the
petitioners do have genuine defence, but instead of following due
procedure 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 plea, he can file
necessary documents and also make an application, if he is so advised,
under Section 145(2) of the NI Act to recall the complainant to cross-
examine him on his plea of defence. However, only after disclosing his
plea of defence, he can make an application that the case should not be
tried summarily but as a summons trial case.
12. An offence under Section 138 of the NI Act is technical in nature
and defences, which an accused can take, are inbuilt; for instance, the
cheque was given without consideration, the accused was not a Director
CRL. M.C. 254/2020 Page 7 of 11
at that time, accused was a sleeping partner or a sleeping Director,
cheque was given as a security etc. etc., the onus of proving these
defences is on the accused alone, in view of Section 106 of the Indian
Evidence Act, 1872. Since the mandate of the legislature is the trial of
such cases in a summary manner, the evidence already given by the
complainant by way of affidavit is sufficient proof of the offence and
this evidence is not required to be given again in terms of section 145(1)
of the NI 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
13. The offence under Section 138 of the NI 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-examined only if the
accused makes an application to the Court as to, on what point he wants
CRL. M.C. 254/2020 Page 8 of 11
to cross examine the witness(es) and then only the Court shall recall the
witness by recording reasons thereto.
14. Sections 143 and 145 of the NI Act were enacted by the
Parliament with the aim of expediting trial in such cases. The provisions
of summary trial enable the respondent to lead defence evidence by way
of affidavits and documents. Thus, an accused who considers that he has
a tenable defence and the case against him was not maintainable, he can
enter his plea on the very first day of his appearance and file an affidavit
in his defence evidence and if he is so advised, he can also file an
application for recalling any of the witnesses for cross-examination on
the defence taken by him.
15. In view of the procedure prescribed under the Cr.PC, if the
accused appears after service of summons, the learned Metropolitan
Magistrate shall ask him to furnish bail bond to ensure his appearance
during trial and ask him to take notice under Section 251 Cr.PC and
enter his plea of defence and fix the case for defence evidence, unless an
application is made by an accused under Section 145(2) of NI Act for
recalling a witness for cross-examination on plea of defence. If there is
an application u/s 145(2) of N.I. Act for recalling a witness of
complainant, the court shall decide the same, otherwise, it shall proceed
to take defence evidence on record and allow cross examination of
defence witnesses by complainant. 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. PC., if not already taken, and enter
his/her plea of defence before the concerned Metropolitan Magistrate‟s
CRL. M.C. 254/2020 Page 9 of 11
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.
16. 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.
17. 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 NI Act and Section 27 of the General
Clauses Act, 1897 as well as the provisions of Section 146 of the Act.
18. The provisions of Sections 142 to 147 lay down a Special Code
for the trial of offences under the Chapter XVII of the N.I. Act. While
considering the scope and ambit of the amended provisions of the Act,
the Supreme Court in Mandvi Co. Op. Bank Ltd. v. Nimesh B. Thakore ,
AIR 2010 SC 1402, has held that the provisions of Sections 143, 144,
145 and 147 expressly depart from and override the provisions of the
Cr.PC, 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
CRL. M.C. 254/2020 Page 10 of 11
in any way compromising on the right of the accused for a fair
trial."
19. The parameters of the jurisdiction of the High Court, in exercising
jurisdiction under Section 482 Cr.PC, 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 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. The petitioners, therefore, cannot be allowed
to take recourse to section 482 Cr.P.C as a substitute for initiating second
revision petition when there is nothing to show that there is serious
miscarriage of justice or abuse of the process of law.
20. Accordingly, I find no flaw or infirmity in the proceedings pending
before the Trial Court. However, the Trial Court shall certainly consider
and deal with the contentions and the defence of the petitioners in
accordance with law.
21. The prayers are untenable in law. Hence, this Court does not deem it
appropriate to issue notice to the respondent. Accordingly, the petition is
dismissed and CRL. M.A. 1107/2020 is also disposed of accordingly.
RAJNISH BHATNAGAR, J.
JANUARY 20, 2020 Sumant CRL. M.C. 254/2020 Page 11 of 11