Read Order: M/S AWADH CONSTRUCTIONS Vs. M/S AMARPREET SHUTTERING 

Mansimran Kaur 

New Delhi, April 16, 2022: Dismissing a petition filed u/s 482 of CrPC for quashing a criminal complaint  u/s 138 of Negotiable Instruments Act, the Delhi High Court has held that the Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. The issues involving facts raised by the petitioner by way of defence can be canvassed only by way of evidence before the Trial Court and the same will have to be adjudicated on merits of the case and not by way of invoking jurisdiction under Section 482 Cr.P.C. at this stage.

The Bench of Justice Rajnish Bhatnagar noted that the parameters of the jurisdiction of the High Court in exercising jurisdiction under Section 482 Cr.P.C, are almost well-settled. Although it has wide amplitude, but a great deal of caution is also required in its exercise.

The brief facts of the case were that the petitioner therein is a proprietorship and  a civil and structural contractor carrying on its business in various states of the country. The petitioner and the respondent entered into an agreement dated January 17, 2019 whereby  the petitioner conceded  to hire shuttering and scaffolding material from the respondent initially for a period of six months. 

As per Clause 5 of this Agreement, the petitioner was required to provide an undated security cheque to the respondent to cover full value of the material supply. On the same day, i.e., January 17, 2019, petitioner sent an email to the respondent conveying the material required. Pursuant to the same,  respondent reverted back an email to the petitioner conveying the calculation of advanced amount payable by the petitioner and also the amount to be paid through security cheques. The email further revealed that the amount that was to be paid to the respondent is Rs. 2,63,700 as an advance payment and further security cheques of Rs. 77,41,000 as security. After some negotiations, the respondent agreed to accept Rs. 63,00,000 as security cheques instead of Rs. 77,41,000. Accordingly, the petitioner prepared 5 undated cheques totaling to the amount of Rs. 63,00,000 and one current dated cheque amounting to Rs. 2,63,700. Petitioner also sent an email to the respondent dated January 24, 2019  attaching the scanned copies of these six cheques.

Pursuant thereto the work commenced at the Raipur Project. During the course of work, respondent asked for money and on that basis petitioner issued a cheque of Rs. 7,81,122/- in favour of respondent dated August 28, 2019, which  indeed was returned by bank on November 27, 2011.  Thereafter, the respondent sent a legal notice dated December 11, 2019 demanding the said amount.  The  petitioner sent a reply on December 18, 2019  stating that it would make necessary payment failing which, respondent instituted a  complaint under Section 138 NI Act before the Court of Additional Chief Metropolitan Magistrate, Saket and the petitioner was summoned for the offences under Section 138 NI Act vide order dated August 31, 2021.

Aggrieved by the same, the petitioner instituted the present petition under Section 482 of Cr.P.C.  The High Court in the present case was of the view that it cannot take away the powers of the Metropolitan  Magistrate and decide upon the question of law as to whether the accused can be tried under Section 138 of the N.I. Act  or not. The plea pertaining to this question of law is to be entertained before the Court of Metropolitan Magistrate under Section 251 of the Cr.P.C. and under Section 263(g) of the Cr.P.C. Along with this plea, he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of the N.I. Act to recall the complainant to cross examine him on his plea of defence. However, only after disclosing his plea of defence, he can make an application that the case should not be tried summarily but as a summon trial case, the Court stated. 

It was further observed that the mandate of legislature is to conduct trial in a summary manner, therefore the  affidavit  of evidence given by the complainant  is sufficient 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 Court further assessed the jurisdiction of the present Court in the instant case and observed that the Court cannot exercise its power under Section 482 Cr.P.C. to deal with the issues raised in the complaint or to question the facts. The facts raised by the petitioner can only be dealt by Trial Court and the same are to be adjudicated on the merits of the case and not by invoking jurisdiction under Section 482 Cr.P.C at this point of time. 

The Bench said, “Now, coming to the jurisdiction, suffice it to say that the Court, in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. 

At last, this Court observed that the issues raised in complaint are on disputed facts and law which can be settled only before the Trial Court.  A Supreme Court case of Mandvi Co. Op. Bank Ltd v. Nimesh B. Thakore was referred to, wherein the Court has held that the provisions of Sections 143, 144, 145, 147 expressly depart from and override the provisions of the Cr.P.C. 

The Bench referred to another case of the Supreme Court in State of Madhya Pradesh Vs. Yogendra Singh Jadon & Anr  (Arising out of SLP (Criminal) No. 172 of 2017) wherein it was held that the power under Section 482 of the Code of Criminal Procedure, 1973 cannot be invoked in cases where allegations need to be proved in Court of law. 

Similarly, the Bench held that in the present case the defence raised by the petitioners in the present petition required evidence which couldnot be appreciated, adjudged or evaluated under Section 482 Cr.P.C. and the same could only be proved in a Court of law. 

Thus, this Court observed that there was no flaw in the proceedings before the Trial Court, however it was also stated that the Trial Court should deal with the contentions and defence of the petitioner in accordance with the law. Accordingly, the petition was dismissed and all pending applications were disposed of accordingly. 

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