TaxTMI 
TaxTMI 
2010 (7) TMI 279
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....tainable against the petitioners. Reliance is placed on Adalat Prasad v. Rooplal Jindal [2004] 7 SCC 338, to press the point that the petitioners have no other alternative but to approach the High Court. While Adalat Prasad's case [2004] 7 SCC 338, laid down that if a Magistrate takes cognizance of an offence and issues process, without there being any allegations against the accused or any material implicating the accused, the order of the Magistrate may be vitiated, but the relief, an aggrieved accused can obtain at that stage is not by invoking section 207 of the Code of Criminal Procedure. The remedy lies in invoking section 482 of the Code of Criminal Procedure. It is clear from the judgment of Adalat Prasad's case [2004] 7 SCC 338, that section 482 of the Code of Criminal Procedure, can be resorted to only where the High Court is called upon to examine the complaint and the material available before the trial court at the time of summoning per se to arrive at a conclusion that no case was made out against the petitioner/accused. However, in all the petitions pending before this court and other petitions flowing before this court daily, the quashing of summoning order ....
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....y persons as a tool of dishonesty and 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 must face the criminal trial and consequences. However, the effort of some of the petitioners is to teach a lesson to the complainant for approaching the court of law. The amount of cheque is not paid despite demand notice and the complainant is made to suffer further by prolonging the litigation carrying it from one forum to an other. In many cases, the petitioners do have genuine defence, but, due to mis-reading of the provisions of the Negotiable Instruments Act, 1881 and the Code of Criminal Procedure, it is considered that the only option available 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. I consider that this situation is arising because of the fact that the Metropolitan Magistrates at lower court are not following the mandate of the statute of conducting trial of cases under section 138 of the Negotiable Instrumen....
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....o be recalled and re-examined after summoning of the accused unless the Metropolitan Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under section 145(2) of the Negotiable Instruments Act, 1881 suo motu by the court. Section 145 of the Negotiable Instruments Act, 1881 reads as under : "145. Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code. (2) The court may, if it thinks fit, and shall, on the application of the prosecution of the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein." 6. Summary trial procedure is given under sections 260 to 265 of the Code of Criminal Procedure. As per this procedure also when during the course of summary trial, it appears to the Magistrate that the nature of the case was such that it was desirable to try it as a summon trial, he has the power....
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....the Metropolitan Magistrate just by taking bail bond of the accused and passing a bail order, while sections 251 and 263(g) of the Code of Criminal Procedure, provide that when the accused appears before the Metropolitan Magistrate in a summary trial proceedings, the particulars of the offence, to which he is accused, shall be stated to him and he should be asked whether he pleads guilty or he has any defence to make. This is the mandate of section 143 of the Negotiable Instruments Act, 1881, which provides summary trial of offence in terms of the Code of Criminal Procedure. Under section 263(g) of the Code of Criminal Procedure, the court has to record the plea of the accused and his examination. It is thus obvious that in a trial of an offence under section 138 of the Negotiable Instruments Act, 1881 the accused cannot simplicitor say "I plead not guilty" and wants to face trial. Since the offence under section 138 of the Negotiable Instruments Act, 1881 is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the court as to what is his defence on the very fi....
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....pplication must disclose the reason why the accused wants to recall the witnesses and on what point the witness is to be cross examined. One must not forget that the offence under section 138 of the Negotiable Instruments Act, 1881 is not of the kind of offence as in the IPC where the State prosecutes a person for an offence against the society. The offence under section 138 of the Negotiable Instruments Act, 1881 is an offence in the personal nature of the complainant and it is an offence made under the Negotiable Instruments Act, 1881 so that the trust in commercial transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face trial under section 138 of the Negotiable Instruments Act, 1881, he alone has to take the plea of defence and burden cannot be shifted to the 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 defences....
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....ent based, is not tried in a summary manner, the sole purpose of making this offence in summary trial stands defeated. Thus in all cases under section 138 of the Negotiable Instruments Act, 1881, once evidence is given by way of affidavit, at the stage of pre-summoning, the same evidence is to be read by the court at post summoning stage and the witness need not be recalled at post summoning stage unless the court of Metropolitan Magistrate, for reasons, considers it necessary. 12. In Harish Chandra Biyani v. Stock Holding Corporation of India Ltd. [2007] 1 BC 417, the Bombay High Court had occasion to deal with the issue and observed as under : "5. In view of the amended provisions of section 145 of the Negotiable Instruments Act, 1881, the complainant is entitled to lead evidence by way of an affidavit. The Division Bench of this court in the case of KSL and Industries Ltd. v. Mannalal Khandelwal reported in Manu/MH/0022/2005, has held that the evidence of the complainant in respect of his examination-in-chief can be taken on affidavit. If evidence of the complainant is taken on affidavit, it would not be necessary to again record examination-in-chief of the complainant whose ....
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....In fact paragraphs 38 and 39 of the said decision, referred to above, make it amply clear that the Division Bench took into consideration the provisions of sub-section (2) of section 145 of Negotiable Instruments Act, 1881 and has thereafter held that the evidence (examination-in-chief) of the complainant can be given on affidavit and thereafter if the accused so desires, he/she may request the court to call the complainant for cross-examination." 13. Under section 144 of the Negotiable Instruments Act, 1881 service on the accused can be effected through registered post/speed post or by courier service and if the accused refuses to receive the summons, he can be declared served and the court can take coercive measures for entering appearance of the accused. Chapter VI of the Code of Criminal Procedure, under sections 62, 63 and 64, provides how summons are to be served on the accused persons by the police. Section 65 thereof provides that if service cannot be effected in the manner as provided in section 62, 63 or 64 of the Code of Criminal Procedure, the serving officer shall affix one copy of the summon on some conspicuous part of his house or area in which the accused resides a....
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....summary trial enable the respondent to lead defence evidence by way of affidavit 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. 16. I consider that along with the notice of appearance, in view of the judgment of the Supreme Court in Crl. Appeal No. 963 of 2010 and Criminal Appeals Nos. 964-966 of 2010, Damodar S. Prabhu v. Sayed Babalal H. [2010] 159 Comp. Cas. 1, decided on May 3, 2010, the court of Metropolitan Magistrate should also inform the accused that in case he wants to make the payment of the cheque amount, he should either in person or through his counsel or representative send the cheque amount, either in cash or through draft so that the same can be paid to the complainant and the case would thus come to an end. The accused also has the liberty to make an application on the very first day that he wants to compromise and in terms of the ju....