Delhi High Court
Mayank Chawla vs State & Ors on 5 March, 2020
Equivalent citations: AIRONLINE 2020 DEL 510
Author: Rajnish Bhatnagar
Bench: Rajnish Bhatnagar
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 05.03.2020
+ CRL.M.C. 1272/2020, CRL.M.A. 4913/2020, CRL. M.A.4914/2020
& CRL. M.A. 4915/2020.
MAYANK CHAWLA ..... Petitioner
Through: Mr. B.P. Singh, Mr.Vasu Jain and
Ms. Medha Tiwari Advocates.
versus
STATE & ORS ..... Respondents
Through: Mr. M.S. Oberoi, APP for the
state (Respondent No. 1)
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
RAJNISH BHATNAGAR J. (ORAL)
CRL. M.A. 4914/2020
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL. M.A. 4915/2020
Heard on the application. In the facts and circumstances as mentioned
in the application, the application is allowed and the delay is condoned.
The application is disposed of accordingly.
CRL. M.C. 1272/2020 Page 1 of 8
CRL.M.C. 1272/2020 & CRL.M.A. 4913/2020
1. The petitioner has filed the present petition u/s 482 of the Cr.P.C. with
the prayer to quash the impugned order dated 19.11.2018 passed by the Ld.
MM-03 NI Act/SE/ND District Courts, Saket in criminal complaint bearing
No. 7727/2018 titled as "Vipin Kumar Singh Vs. Mayank Chawla & Anr."
and other consequential proceedings arising out of and related to the same.
2. The respondent No. 2 herein had instituted a complaint under section
138 read with sections 141/142 of the Negotiable Instruments Act, 1881
against the petitioner herein and M/s Skytech Constructions Pvt. Ltd.
through its Director Sh. R.K. Chawla in respect of non-payment against one
dishonoured cheque for the amount of Rs. 50,00,000/- issued by petitioner
in favour of respondent No. 2.
3. The Metropolitan Magistrate vide impugned order dated 19.11.2018
summoned the petitioner U/s 138 NI Act.
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
the cheque in question was a post dated cheque which was issued as a
security cheque without any liability and privity of contract between the
petitioner and respondent No. 2. It is further argued that there is alteration
CRL. M.C. 1272/2020 Page 2 of 8
over the leaflet of the cheque in question which was very much apparent but
the Ld. trial Court has failed to consider the same.
6. Now coming to the 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
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
CRL. M.C. 1272/2020 Page 3 of 8
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.
7. 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
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.
8. 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
CRL. M.C. 1272/2020 Page 4 of 8
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
to cross examine the witness(es) and then only the Court shall recall the
witness by recording reasons thereto.
9. 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.
10. 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
CRL. M.C. 1272/2020 Page 5 of 8
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
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.
11. 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.
12. 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.
13. 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
CRL. M.C. 1272/2020 Page 6 of 8
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
in any way compromising on the right of the accused for a fair
trial."
14. 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 and the same can only be proved in the Court
of law. Reliance can be placed upon "State of Madhya Pradesh Vs.
Yogendra Singh Jadon & Anr"., Criminal Appeal No. 175 of 2020
(Arising out of SLP (Criminal) No. 172 of 2017) decided by the Hon'ble
Supreme Court on January 31, 2020 in which it has been held that "the
power under Section 482 of the Code of Criminal Procedure, 1973 cannot
CRL. M.C. 1272/2020 Page 7 of 8
be exercised where the allegations are required to be proved in Court of
law".
15. 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 petitioner in
accordance with law.
16. The prayers are untenable in law. Hence, this Court does not deem it
appropriate to issue notice to the respondents. Accordingly, the petition is
dismissed and Crl.M.A. 4913/2020 is also disposed of accordingly.
RAJNISH BHATNAGAR, J.
MARCH 05, 2020 Sumant CRL. M.C. 1272/2020 Page 8 of 8