2020 (1) TMI 1674 - HC - Indian Laws

Section 482 petition dismissed for challenging cheque dishonour case without showing abuse of process or miscarriage of justice

Tathagat Exports Pvt Ltd and Ors Versus PEC Limited

Delhi HC dismissed petition under Section 482 Cr.P.C. challenging cheque dishonour proceedings. Court held that Section 138 NI Act ingredients must be ... Dishonour of Cheque - validity of legal demand notice - demand has been made over and above the cheque amount - invocation of revisional jurisdiction of the Court of Sessions - HELD THAT:- 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 - 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. 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, [2010 (1) TMI 570 - SUPREME COURT], 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 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 - 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.P.C. 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. There are 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 - appeal disposed off. Issues Involved:1. Validity of the notice issued under Section 138 of the Negotiable Instruments Act, 1881.2. Jurisdiction of the High Court under Section 482 Cr.P.C. after the revision petition is dismissed by the Sessions Court.3. Procedural aspects and rights of the accused under the Negotiable Instruments Act and Cr.P.C.Issue-wise Detailed Analysis:1. Validity of the Notice Issued Under Section 138 of the Negotiable Instruments Act, 1881:The petitioners argued that the notice issued on March 2, 2017, was defective because the demand exceeded the cheque amount, making the notice vague and ambiguous. They relied on precedents from the Supreme Court, including Suman Sethi v. Ajay K. Churiwal, K.R. Indira v. Dr. G. Adinarayana, and M/s. Rahul Builders v. M/s. Arihant Fertilizers & Anr. However, the court found that the notice should be read as a whole. The notice clearly detailed the dishonoured cheques, and there was no denial that the cheques were issued and dishonoured due to insufficient funds. The court concluded that the demand was neither ambiguous nor confusing, and the precedents cited by the petitioners were not applicable to the present case.2. Jurisdiction of the High Court Under Section 482 Cr.P.C. After the Revision Petition is Dismissed by the Sessions Court:The court addressed whether the petitioners, having availed the remedy of revision, could invoke Section 482 Cr.P.C. as a substitute for a second revision, which is barred under Section 397(3) Cr.P.C. The court cited the Supreme Court's decisions in Rajinder Prasad v. Bashir and Kailash Verma v. Punjab State Civil Supplies Corporation & Anr., which emphasized that the High Court's power under Section 482 should be exercised sparingly and cautiously. The court can intervene only in cases of serious miscarriage of justice, abuse of process, or non-compliance with mandatory provisions of law. The court found no such circumstances in the present case, and thus, the petitioners could not use Section 482 Cr.P.C. to initiate a second revision.3. Procedural Aspects and Rights of the Accused Under the Negotiable Instruments Act and Cr.P.C.:The court elaborated on the procedural aspects under the Negotiable Instruments Act and Cr.P.C. It emphasized that once a cheque is issued, it must be honoured, and if dishonoured, the issuer is given an opportunity to pay the amount via a notice. If the issuer fails to pay, they face criminal trial. The court noted that petitioners often raise frivolous pleas to prolong litigation, but genuine defenses should be presented before the Metropolitan Magistrate under Sections 251 and 263(g) of the Cr.P.C. The court highlighted that the offence under Section 138 of the NI Act is technical, with specific defenses available to the accused, who bears the onus of proof under Section 106 of the Indian Evidence Act, 1872.The court also discussed the summary trial provisions under Sections 143 and 145 of the NI Act, which expedite the trial process. The accused can file an affidavit in their defense and request the recall of witnesses for cross-examination. The court emphasized that the High Court should not usurp the powers of the Metropolitan Magistrate and that the accused must present their defense at the trial court level.Conclusion:The court found no flaw or infirmity in the proceedings pending before the Trial Court and dismissed the petition. The Trial Court was directed to consider and deal with the petitioners' contentions and defenses in accordance with the law. The prayers were deemed untenable, and the petition, along with CRL. M.A. 1074/2020, was dismissed.