TaxTMI 
TaxTMI 
2021 (3) TMI 1433
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....50 lacs in their company with the assurance that same would be doubled in five years and relying on such assurances, he invested his lifetime savings with them; and in March-2014 the accused persons failed to return the principal amount with interest being total of Rs 1 Crore but then he was further inducted to invest Rs 20 lacs more with the promise to return Rs. 2 crores on or before March-2019 and that MoU dated 26.07.2018 was executed, whereby accused persons undertook to pay the complainant a sum of Rs.47,53,519/- and a cheque was also issued; and that later MoU dated 05.05.2019 was executed and it was promised that the complainant would be made a partner in the business and receipt of Rs. 50 lacs as principal amount was retained with the promise that it would be safe and secure with them and it would become Rs. 2 crores in 2019: and that on 18.02.2019 another Promissory Note was issued by accused No.2/ Guneet Bhasin in favour of the complainant and his wife acknowledging liability to pay an amount of Rs. 2,47,53,000/- payable to the complainant and his wife on or before 30.06.2019. 3. On 16.07.2019 nine cheques were issued in the tune of Rs. 73,00,000/-. The said cheques on ....
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....responsible for finance and banking in the accused no.1. It is pertinent to note that the petitioner as Head of Finance and Banking she is fully aware of receipt and utilization of funds and she is fully cognizant of the issuance of the bounced cheque(s). 8. As far as the contention of the Petitioner regarding the locus of the Respondent No. 2 to file the Complaint u/s 138 of the Act, it is submitted the payee in the cheques is the wife of the complainant and she has duly authorized her husband to file the present complaint. Further the complainant has submitted his affidavit in the Court to the effect that she is personally aware of all the facts and circumstances of the case. Counsel for the Respondent No. 2 has relied upon: a. A.C Narayan v. State of Maharashtra & Anr. Cr. Appeal No. 73 of 2007 b. Rajesh Agarwal v. State 2010 SCC Online Del 2501 c. Nandhini v. Vinayaga Textiles 2015 SCC Online Mad 8304 d. Monaben Ketanbhai Shah & Anr. v. State of Gujrat & Ors. (2004) 7 SCC 15 e. N. Rangachari v. BSNL (2007) 5 SCC 108 f. A. R. Radha Krishna v. Dasari Deepthi & Ors. (2019) 15 SSC 550 9. Now coming to the legal position in this case and taking into consideration the v....
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....nt proof of the offence and this evidence is not required to be given again in terms of section 145(1) of the N.I. 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. 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 defense and the burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defense, he is still to be considered innocent. If an accused has a defense against dishonor of the cheque in question, it is he alone who knows the defense and responsibility of spelling out this defense to the Court and then proving this defense is on the accused. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonor of che....
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....ible for its day to day operations alongwith other accused persons. He has specifically averred that accused persons were personally known to him through common acquaintances and shared a cordial relationship which was the premise, on the basis of which the complainant invested heavily in the funds of the company. The plea raised by the Ld. Counsel for the petitioner that Summy Bhasin never participated in any negotiations with the complainant cannot be considered at this preliminary stage since such defense can only be considered during the stage of trial. 15. The prosecution under section 138 of the Act can be launched for vicarious liability against any person, who at the time of commission of offence was in charge and responsible for the conduct of the business of the accused company. Merely because the petitioner did not sign the cheques in question, is not decisive for launching prosecution against him. The plea of the petitioner that the offences were committed without his knowledge cannot be considered at this stage considering the fact that the Complainant has specifically averred that negotiations had taken place with him along with other co-accused persons and they were....
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....isions of Section 146 of the Act. 20. 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 Cr.P.C, 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." 21. The parameters of the jurisdiction of the High Court in exercising jurisdic....