TaxTMI 
TaxTMI 
2013 (11) TMI 1806
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....ced from time to time. The petitioners issued four cheques bearing Nos. 743797 dated 27th September 2010, 743780 dated 24th September, 2010, 744724 dated 28th September, 2010 and 743798 dated September 25th September, 2010 for Rs. 10 lacs each drawn on Bank of Baroda, Faridabad to respondent No. 2 in part discharge of the above liability. (ii) Respondent No. 2 presented the above mentioned four cheques to Bank of Baroda, Mayur Vihar, Phase-I. However, all four cheques were returned as unpaid for reason account closed whereupon respondent No. 2 issued a legal notice dated 25th October, 2010 to the petitioners. (iii) On 10th December, 2010, respondent No. 2 instituted a complaint under Section 138 of the Negotiable Instruments Act before the learned Chief Metropolitan Magistrate, Karkardooma Courts relating to dishonour of aforesaid four cheques for Rs. 10 lacs each. (iv) The learned Metropolitan Magistrate took on record the pre-summoning evidence of the complainant by way of affidavit on 24th February, 2011. Mr. B.K. Gupta, power of attorney holder of respondent No. 2 deposed in the evidence by way of affidavit that the petitioner handed over four cheques....
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....in view of the recent judgment of the Supreme Court in Nishant Aggarwal v. Kailash Kumar Sharma, 2013 (7) SCALE 753 : [2013 ALL SCR 2531]. Inquiry under Section 202 Cr.P.C. 5. Second ground of challenge is that the learned Metropolitan Magistrate has not conducted any inquiry or investigation in terms of Section 202 Cr.P.C. There is no merit whatsoever in this ground as the learned Metropolitan Magistrate took into consideration the evidence by way of affidavit of the complainant and the documentary evidence on the basis of which prima facie case was made out against the petitioners and no further enquiry was warranted in the matter. This case is squarely covered by Abhishek Agrawalla v. Boortmalt NV, (2011) 122 DRJ 42, in which this Court held as under: 3. The only ground pressed during arguments of this petition assailing order of learned MM is that the order was bad in law in view of the fact that the trial court failed to comply with the provisions of Section 202 Cr.P.C whereunder the trial court was supposed to postpone the issue of process and was to conduct an inquiry either himself or direct investigation to be made by the police officials into the allegation....
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....e calls had been made frequently or it was a solitary call and the Magistrate can also make enquiry about the person in whose name the telephone was standing. This would enable the Magistrate to find out if there was credibility in the statement given by the complainant. The Magistrate can summon the officials of service provider telephone company and make this enquiry himself. Similarly there may be a case where a person alleges that while he was at X place, Y a resident of other State had come there and beaten him or abused him or threatened him or caused injuries to him etc. The person produces his MLC and makes an oral statement. The court in such a case, if the accused is of outside his jurisdictional area, would have to get an enquiry made through police if the accused was living at the address given and if the accused had visited the place where it was alleged that he had beaten or threatened. The Magistrate can also get a fact finding enquiry done from police of that State or police of his own State. However, where the commission of offence is disclosed only from the documents, no further enquiry except scrutinizing the documents proved before the court by testimony of comp....
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....ng against the accused or not and that holding enquiry or investigation is not an mandatory course before issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have fallen upon on mere perusal of the complaint and consideration of complainant s evidence on oath. 10. The Supreme Court further observed that the enquiry under Section 202 is of a limited nature. Firstly it is to find out whether there was a prima facie case against a person accused of the offence in the complaint and secondly to prevent the issuance of process in all such complaints that are false or intended only to harass a person. In Kewal Krishan v Suraj Bhan 1980 Supp. SCC 499, the Supreme Court observed that what the Magistrate has to do is to see whether on a cursory perusal of the complaint of the complaint and the evidence recorded under preliminary enquiry under Section 200 and 202 Cr.P.C. there is prima facie evidence in support of the charges leveled against the accused. About use of the word shall in the proviso to sub section 2, the Supr....
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.... facilitates the accused to know allegation made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all Sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established. 11. I, therefore, consider that in the present case where disclosure of commission of offence was based on documentary evidence produced by the complainant before the court and from the documents it was prima facie clear that a commission of offence under Section 420 IPC has taken place, no further enquiry could have been held by the Magistrate. xxx xxx xxx 13. In Rosy v State (supra) the Supreme Court also agreed with the submission of counsel for the appellant that the provisions under Section 465 Cr.P.C. would play a role at any stage and observed as under: 18. Further, the aforesaid interpretation would be in consonance with Chapter XXXV of the Cr.P.C., which deals with irregularities in the pr....
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.... Instruments Act that the cheques in question have been issued in discharge of a debt or liability unless rebutted by the petitioners. The petitioner have to rebut the presumption under Section 139 before the learned Metropolitan Magistrate at an appropriate stage. Section 482 Cr.P.C. cannot be invoked by the petitioner to rebut the legal presumption. Reference may be made to Hiten P. Dalai v. Bratindranath Banerjee, 2001 (6) SCC 16 : [2001 ALL MR (Cri) 1497(S.C.)], MMTC Ltd. v. MEDCHL Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 : [2002 ALL MR (Crl) 230 (S.C.)] and Maruti Udyog Ltd. v. Narender, (1999) 1 SCC 113. More than three Cheques clubbed in a Complaint under Section 138 Negotiable Instruments Act 7. The last ground of challenge by the petitioners is that more than three cheques cannot be clubbed in proceedings under Section 138 of Negotiable Instruments Act. There is no merit in this contention as the cause of action for filing a complaint under Section 138 of the Negotiable Instruments Act is the service of notice under Section 138 of the Negotiable Instruments Act and not the dishonour of cheques. In the present case, the complainant issued one notice of dishonou....
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....er referring to several judgments of various High Courts held that dishonour of sixteen cheques drawn on different dates when presented together for payment and the issuance of a single lawyer's notice demanding payment of the amount towards all the dishonoured cheques be covered by Section 220(1) Cr.P.C. and hence is saved from the mischief of Section 219 Cr.P.C. The relevant portion of the said judgment is reproduced hereunder:- 12. The abovesaid 16 cheques were drawn on different dates and they were for different amounts, but, they were presented together for payment and were dishonoured and a single notice was sent by the complainant to the drawer. The general rule is that every distinct offence of which a person is accused, there shall be separate charge and every such charge shall be tried separately. As observed by the Division Bench of the Kerala High Court in 1996 (3) Cri 283, Section 219 Cr.P.C. is an exception to the general rule. As stated earlier, even though different cheques were given on different dates, the presentation of all those cheques formed the same transaction. Further, the demand was also made by the complainant on the dishonouring of the cheq....
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....id to be vitiated. To put it clear, though the giving of cheques by the accused to the complainant may be on different dates, all those acts of giving those cheques were merged together to form the same transaction viz., the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands, we are of the view that the accused may be charged and tried at one trial for several such offences because the series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonouring the cheques, therefore, it cannot be said that the complaint is vitiated. 8. Same view has also been taken by this Court in Sharma Contracts (India) Pvt. Ltd. v. State & Anr., (2012) 1 MWN (Crl.) DCC 105 which may also be referred to. This petition is gross abuse and misuse of process of law 9. In Rajesh Aggarwal v. State, 2010 (171) DLT 51, this Court noted that the High Court is flooded with petitions under Section 482 Cr.P.C. for challenging the summoning order passed by the Magistrate under Section 138 of t....
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....s who may have been examined. 2. Section 145 of the Negotiable Instrument Act: 2.1 Complainants evidence to be by way of affidavit Under Section 145 of the Negotiable Instrument Act, the evidence of the complainant is to be given by way of affidavit which shall be read in evidence. 2.2 Cognizance of the offence to be taken on the basis of affidavit and documents The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. 2.3 Complainant not required to examine himself twice The complainant is not required to examine himself twice i.e. once after filing the complaint and second after summoning of the accused. 2.4 Complainant not required to be recalled unless a specific order of Magistrate under Section 145(2) of Negotiable Instruments Act The complainant is not required to be recalled and re-examined after summoning of accused unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to b....
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....ail order, while Sections 251 and 263(g) of Cr.P.C. provide that when the accused appears before 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 N.I. Act, which provides summary trial of offence in terms of Cr.P.C. 4.2.2 Under Section 263(g) of Cr.P.C., 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 N.I. Act, the accused cannot simplicitor say "I plead not guilty" and wants to face trial. 4.2.3 Since offence under Section 138 of N.I. Act 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 first hearing when the accused appears before the Court. 4.3 Accused cannot appear before High Court without appearance and disclosure of defence before the Magistrate 4.3.1 If the accused does not appear before ....
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.... 4.4.3 When 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 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. 4.4.4 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. 4.4.5 The proper procedure to be followed by Magistrate is that soon after summoning, the accused must be asked to disclose his defence and his plea should be recorded. 4.4.6 Where an accused takes no defence and simply says "I am innocent", there is no reason for the Magistrate to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. 4.5 In a summary trial, a compl....
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....he accused is evading his service, the court of Magistrate should direct service through affixation as provided under Section 65 of Cr.P.C. and in case the accused does not appear the court is at liberty to take steps for coercive appearance. 4.6.2 An issue arises where there are many accused persons in a case and some of them are not appearing, should the court proceed against those who are appearing or should wait for the completion of service of all the accused? I consider that summary trial leaves no option to the court. The whole purpose of summary trial shall stand defeated if the court of Magistrate tells the accused persons, who have been served, to come to the court repeatedly till the other accused are served. The plea of the accused is to be recorded on the day of his appearance under the summary trial and if that accused gets his plea recorded, he is at liberty to lead evidence in support of his plea and the court cannot tell him to keep coming repeatedly either in person or through counsel due to non appearance of other accused persons. The court, in such a case, asks him to disclose his defence and to prove his defence. In case court feels that the case shoul....
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.... otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.... 10. This case is squarely covered by the aforesaid judgment and the petitioners are guilty of gross abuse and misuse of the process of law as:- 10.1 The petitioners did not disclose their defence before the learned Metropolitan Magistrate in terms of the judgment of this Court in Rajesh Aggarwal (supra). 10.2 That apart, the petitioners have also not chosen to disclose their defence before this Court. 10.3 In para 2 of the petition, the petitioners have stated that the petitioners got the supplies from the respondent at Faridabad; the respondent issued the invoices in respect of the supplies at Faridabad office and each and every transaction took place at Faridabad. The petitioners further stated that the petitioners gave blank cheques to the respondent in good faith and against security in the month of September - October, 2009 and there is no debt or liability. However, the petitioners have failed to disclose the particulars of the sale transactions, invoices and supplies between the parties. As such, the petitioners are guilty of conceal....
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.... 55. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to hilt for four decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years. 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. (Emphasis supplied) 11.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 (3) SCALE 550 : [2012 ALL SCR 1096], the Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences as under:- 85. This Court in a recent judgment in Ramrameshwari....