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2023 (7) TMI 1059
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.... the summoning order dated 19.07.2022 passed by M.M. (N.I. ACT), Digital Court No. 8, South District, Saket Courts, in Complaint Case No. 4629/2022; and for quashing of the Complaint Case No. 527/2022 registered under Section 138 of the Negotiable Instruments Act, 1881 and setting aside summoning order dated 28.04.2022 passed by Ld. M.M. (N.I. ACT), Digital Court No. 5, South District, Saket Courts, in Complaint Case No. 527/2022; and the proceedings emanating therefrom. 2. The Complainant Board/ Respondent herein, had instituted a Complaint Case No. 4629/2022 under section 138 of the Negotiable Instruments Act, 1881 against the petitioners in respect of non-payment against one dishonored cheque for the amount of Rs 1,38,67,507/- and Compl....
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.... specific roles have been assigned to the present petitioners by the respondent and the petitioners were neither signatories nor witnesses to the loan agreement or any of the subsequent related agreements executed between SMPL and the respondent, and therefore, it cannot be assumed that there exists a legally enforceable debt or liability against the petitioners. 6. Ld. Counsel for the petitioners in support of his contentions has placed reliance on the following judgments: * Sudeep Jain vs. ECE Industries Ltd. [Crl. M.C. 1821 of 2013] * Sunita Palita & Ors. vs. M/s Panchami Stone Quarry [(2022) 10 SCC 152] * SMS Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. [(2005) 8 SCC 89] * Dashrath Rupsingh Rathod vs. State of Mahrashtra [(20....
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....ers have in suppression of earlier DIR 12's filed with the Ministry of Corporate Affairs, have along with the present petition filed a Form DIR 12 wherein it has been alleged that the said DIR 12 was filed in 2021 and as per the said DIR 12 the petitioners have allegedly become nonexecutive directors in 2021 itself, however, it is pertinent to mention that the said alleged E-Form DIR 12 is a dummy document filed on 13.07.2022 and from the petitioner's latest DIR 12 filed in 2022 it is evident that prior to filing of the said E-form the said petitioners were not non-executive directors. She further submitted that the complaint cases were filed prior to filing of the E-Form DIR 12 dated 13.07.2022 and the same has been filed only after the co....
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.... Re: expeditious trial of cases under section 138 of N.I. ACT 1881. 9. As far as the judgments relied upon by the Ld. Counsel for the petitioners are concerned, there is no dispute with regard to the proposition of law laid down in the said judgments, but with due regard, the same are not applicable to the facts of the present case as from perusal of the summoning orders dated 19.07.2022 and 28.04.2022, it is apparent that while passing these orders, the learned Magistrate has perused the complaints as well as affidavits in evidence filed in support of the complaints and other documents filed on record, and therefore, it cannot be said that the trial court has committed any error while summoning the petitioners in the instant cases. 10. N....
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.... 11. The offence under Section 138 of the N.I. 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....
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....ll 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. 14. Moreover, as far as the contention of the Ld. Counsel for the petitioners that the petitioners were only nominee and nonexecutive directors of M/s Su....