M/S. Miracle Infoweb Pvt. Ltd. ... vs State & Anr.
2013 Latest Caselaw 5092 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRL.M.C. 4529/2013 & Crl. M.A.16213/2013
      %                        Date of decision : 7th November, 2013

          M/S. MIRACLE INFOWEB PVT. LTD.
          THROUGH ITS DIRECTOR
          SH. SUMAN BHATTACHARYA            ..... Petitioner
                         Through Mr. Malya Chand, Adv.

                              versus

          STATE & ANR.                              ..... Respondents
                              Through       Mr. Parveen Bhati, APP.

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. The petitioner has challenged the order dated 10th January, 2013 whereby the learned Metropolitan Magistrate dismissed the petitioner's application challenging the territorial jurisdiction of the Court.

2. The brief relevant facts relating to this case are as under:-

(i) The petitioner approached respondent no.2 to broadcast its advertisements on the FM channel "Fever 104 FM" in pursuance to which respondent no.2 broadcasted the advertisements and raised the bills.

(ii) The respondent issued a cheque bearing no.050221 dated 15th July, 2010 for Rs.19,14,243.80 drawn on Federal Bank Limited, Kolkata to respondent no.2 in discharge of the

above liability.

(iii) Respondent no.2 presented the said cheque for clearance in Citi Bank, Cannaught Place, New Delhi whereupon the cheque was dishonoured due to insufficient funds vide returned memo dated 12th January, 2011.

(iv) On 28th January, 2011, respondent no.2 issued a notice of dishonour to the petitioner by Regd. AD Post. The petitioner chose not to reply to the said notice.

(v) On 15th March, 2011, respondent no.2 instituted the complaint under Section 138 of the Negotiable Instruments Act before the Metropolitan Magistrate, Patiala House Courts, New Delhi.

(vi) On 31st March, 2011, the complainant tendered the evidence by way of affidavit, Ex.CW-1/B by which the cheque was exhibited as Ex.CW-1/2, returned memo as Ex.CW-1/3, legal notice as Ex.CW-1/4, postal receipts as Ex.CW-1/5 to CW-1/11, acknowledgements as Ex.CW-1/13 to CW-1/18 and statement of account as Ex.CW-1/19.

(vii) The learned Metropolitan Magistrate issued the summons to the petitioner after examining the pre-summoning evidence and satisfying itself that prima face offence has been made out against the petitioner.

(viii) The petitioner entered appearance before the learned Metropolitan Magistrate on 7th January, 2012 but chose not to file the statement of defence in terms of the judgment of this Court in Rajesh Aggarwal v. State, 171 (2010) DLT 51.

(ix) The petitioner approached this Court in Crl. M.C.3110/2012 to challenge the terrirotrial jurisdiction of the Delhi Courts. On 7th September, 2012, the petitioner withdrew the said petition which was dismissed as withdrawn. The relevant portion of the order dated 7th September, 2012 is reproduced hereunder:

"Crl. M.C.3110/2012 & Crl.M.A.16148/2012 After making some submissions learned counsel for the petitioner seeks permission to withdraw this petition which was filed for quashing of summoning order under Section 138 of the Negotiable Instruments Act on the ground of lack of territorial jurisdiction of the Delhi Courts stating that he would raise this issue before the Trial Court itself at the first instance. This petition is dismissed as withdrawn."

(x) On 11th March, 2013, the petitioner moved an application before the learned Metropolitan Magistrate to challenge the territorial jurisdiction which was dismissed vide order dated 10th January, 2013.

3. The petitioner has approached this Court against the order dated 10th January, 2013 after a delay of more than nine months for which there is no explanation.

4. The only ground urged by learned counsel for the petitioner at the time of hearing of this petition is that the Delhi Court does not have the territorial jurisdiction as the cheque in question was drawn at bank at Kolkata.

Territorial Jurisdiction

5. The law with respect to the territorial jurisdiction of the

Court under Section 138 of the Negotiable Instruments Act has been set at rest by the Supreme Court in Nishant Aggarwal v. Kailash Kumar Sharma, 2012 (7) SCALE 753 in which the Supreme Court, after considering Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 and Harman Electronics Private Limited v. National Panasonic India Pvt. Ltd., (2009) 1 SCC 720, held that the Court where the cheque is deposited for collection, has jurisdiction to try the accused under Section 138 of Negotiable Instruments Act in terms of the principles laid down in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510. The Supreme Court held that the issue of territorial jurisdiction of the Courts did not even arise for consideration in Shri Ishar Alloy Steels Ltd.(supra), and therefore it does not affect the ratio in K. Bhaskaran (supra). The Supreme Court further observed that in Harman Electronics Private Limited (supra), the Court held that a notice of dishonor under Section 138 of Negotiable Instruments Act alone would not confer the jurisdiction to try the accused at the place of issuance of the notice. However, the Supreme Court did not deviate from the other principles laid down in K. Bhaskaran (supra). In Nishant Aggarwal (supra), the Supreme Court re- affirmed the jurisdiction of the Court where the cheque is presented for collection in terms of K. Bhaskaran (supra). The relevant portion of the said judgment is reproduced hereunder:

"2. The question which has to be decided in this appeal is whether the Court, where a cheque is deposited for collection, would have territorial jurisdiction to try the accused for an offence

punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short "the N.I. Act") or would it be only the Court exercising territorial jurisdiction over the drawee bank or the bank on which the cheque is drawn?

xxx xxx xxx

10. Mr. Ahmadi, learned senior counsel for the Appellant in support of his claim that the Court at Bhiwani has no jurisdiction heavily relied on the decision of this Court in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. We were taken through the entire judgment. Though the case is also related to N.I. Act, the issue of territorial jurisdiction was not the subject-matter thereof. In Ishar Alloy Steels (supra), a three-Judge Bench of this Court defined the term "the bank" appearing in clause (a) of Section 138 of the N.I. Act as the drawer's bank. It was defined in the context of the statutory period of six months as mentioned in clause

(a), hence, this Court held that the date of presentation of the cheque for calculating the statutory time period of six months will be the date of presentation of the cheque to the drawer's bank i.e. Payee bank and not the drawee's bank i.e. Collecting bank. This Court has correctly applied the principle of strict interpretation appreciating that Section 138 of the N.I. Act creates an offence as the drawer of the cheque cannot be expected or saddled with the liability to hold the cheque amount in his account beyond six months. The reading of the entire decision in Isher Alloy Steel (supra) shows that jurisdiction of the Court to take cognizance arises only where cheque is presented to the bank of drawer either by drawee's bank or the drawee/payee personally within six months. In other words, the analysis of the said decision, the ratio of Isher Alloy Steel (supra) deals with such a situation where the cheque has been presented within six months to the drawer's bank by the payee in any manner. Inasmuch as the interpretation relates to filing of complaint within the statutory time period of six months,

we are of the view that the reliance on the law laid down in Isher Alloy Steel (supra) has no relevance as far as the present case is concerned. In fact, that is the reason that in Isher Alloy Steel (supra), the judgment in K. Bhaskaran (supra) was not discussed since territorial jurisdiction was not the issue in that case. In view of the same, the definition of the term "the bank" envisaged in Isher Alloy Steel (supra) cannot be employed to decide the jurisdictional aspect and dilute the ratio of the judgment in K. Bhaskaran (supra). Hence, we are of the view that on the strength of the judgment in Isher Alloy Steel (supra) defining the term "the bank", it cannot be said that jurisdiction to file a complaint under Section 138 of the N.I. Act does not lie at the place of drawee's bank. To put it clearly, the judgment in Isher Alloy Steel (supra) does not affect the ratio of the judgment in K. Bhaskaran (supra) which provides for jurisdiction at the place of residence of the payer and the payee. In such circumstances, we are of the view that the judgment in Isher Alloy Steel (supra) as well as judgments of various High Courts relied on by the Appellant cannot be read against the Respondent to hold that the Magistrate at Bhiwani does not have the jurisdiction to try the complaint.

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12. Mr. Ahmadi, learned senior counsel for the Appellant has also relied on a decision of this Court in Harman Electronics Private Limited and Anr. v. National Panasonic India Private Limited : (2009) 1 SCC 720. In Harman Electronics (supra), the complainant and the accused entered into a business transaction. The accused was a resident of Chandigarh. He carried on the business in Chandigarh and issued a cheque in question at Chandigarh. The complainant had a Branch Office at Chandigarh although his Head Office was at Delhi. He presented the cheque given by the accused at Chandigarh. The cheque was dishonoured at Chandigarh. The

complainant issued a notice upon the accused asking him to pay the amount from New Delhi. The said notice was served on the accused at Chandigarh. On failure on the part of the accused to pay the amount within 15 days from the date of the communication of the said letter, the complainant filed a complaint at Delhi. In the complaint, it was stated that the Delhi Court has jurisdiction to try the case because the complainant was carrying on business at Delhi, the demand notice was issued from Delhi, the amount of cheque was payable at Delhi and the accused failed to make the payment of the said cheque within the statutory period of 15 days from the date of receipt of notice. It is further seen that the cognizance of the offence was taken by the learned Magistrate at Delhi. The accused questioned the jurisdiction of the Magistrate at Delhi before the Addl. Sessions Judge, New Delhi. The Sessions Judge held that the Magistrate at Delhi had jurisdiction to entertain the complaint as, admittedly, the notice was sent by the complainant to the accused from Delhi and the complainant was having its Registered Office at Delhi and was carrying on business at Delhi. The learned Judge has also observed that the accused failed to make payment at Delhi as the demand was made from Delhi and the payment was to be made to the complainant at Delhi. The Delhi High Court dismissed the petition filed by the accused. Thereafter, the accused approached this Court. This Court considered Section 138 of the N.I. Act and also referred to K. Bhaskaran's case (supra) and quoted the five components of offence under Section 138 which have been noted in paragraph supra. This Court reiterated that the five different acts which are the components of offence under Section 138 of the N.I. Act were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the N.I. Act and the complainant would be at liberty to file a complaint at any of those places. Ultimately, this Court

held that the Chandigarh Court had jurisdiction to entertain the complaint because the parties were carrying on business at Chandigarh, Branch Office of the complainant was also in Chandigarh, the transactions were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh. This Court pointed out that the complaint did not show that the cheque was presented at Delhi, because it was absolutely silent in that regard and, therefore, there was no option but to presume that the cheque was presented at Chandigarh. It is not in dispute that the dishonour of the cheque also took place at Chandigarh and, therefore, the only question which arose before this Court for consideration was whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the N.I. Act. In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K. Bhaskaran (supra). This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the court clarified only on the service in such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days, thereafter, the commission of an offence completes. We are of the view that this Court in Harman Electronics (supra) affirmed what it had said in K. Bhaskaran (supra) that court within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of notice can have jurisdiction to try the offence under Section 138 of the

N.I. Act. It is also relevant to point out that while holding that the Chandigarh Court has jurisdiction, this Court in Harman Electronics (supra) observed that in the case before it, the complaint was silent as to whether the said cheque was presented at Delhi. In the case on hand, it is categorically stated that the cheque was presented at Bhiwani whereas in Harman Electronics (supra) the dishonour had taken place at Chandigarh and this fact was taken into account while holding that Chandigarh court has jurisdiction. In the complaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that nothing said in Harman Electronics (supra) had adverse impact on the complainant's case in the present case.

13. As observed earlier, we must note that in K. Bhaskaran (supra), this Court has held that Section 178 of the Code has widened the scope of jurisdiction of a criminal court and Section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy (supra) does not affect the ratio in K. Bhaskaran (supra) which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under Section 482 of the Code and dismissed the petition filed by the Appellant- accused.

14. In the light of the above discussion, we hold that the ratio laid down in K. Bhaskaran (supra) squarely applies to the case on hand. The said principle was correctly applied by the learned Sessions Judge as well as the High Court. Consequently, the appeal fails and the same is dismissed. In view of the dismissal of the appeal, the interim order granted by this Court on 09.12.2011 shall stand vacated."

(Emphasis supplied)

This petition is gross abuse and misuse of process of law

6. In Rajesh Aggarwal v. State, 2010 (171) DLT 51, this Court noted that the High Court is flooded with petitions under Section 482 Cr.PC for challenging the summoning order passed by the Magistrate under Section 138 of the Negotiable Instruments Act. This Court further noted that the accused rush to the High Court on mere passing of summoning order and are successful in halting the proceedings before the Magistrate on one or the other ground while the kind of defence raised by the petitioners is required to be raised before the Magistrate at the very initial stage as per the law. The object of the proceedings under Section 138 of the Negotiable Instruments Act is that the cheques should not be used by 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 complainant for approaching 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 other. In many cases, the petitioners do have genuine defence, but, due to mis-reading of the provisions of Negotiable Instruments Act and Cr.P.C., 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 Metropolitan Magistrate and examine their defence first and exonerate them.

This Court noted the reasons for delay in disposal of cases under Section 138 of the Negotiable Instruments Act and held that the accused cannot appear before the High Court without appearance and disclosure of defence before the Magistrate. This Court laid down the following principles relating to the proceedings under Section 138 of the Negotiable Instruments Act:-

"1. Section 143 of the Negotiable Instrument Act: Under Section 143 of the Negotiable Instrument Act, all offences are to be tried in accordance with summary trial provisions of Section 260 to 265 of Cr.P.C. In case of conviction of the accused under Section 138, the Magistrate can pass an order of imprisonment up to one year and fine not exceeding `5,000/-. However, if the Magistrate finds that the nature of the case warrants imprisonment exceeding year, the Magistrate shall, after hearing the parties, pass a reasoned order for hearing the case as a summons trial case and recall the witnesses who may have been examined.

2. Section 145 of the Negotiable Instrument Act: 2.1 Complainant's 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 be passed on an application made by the accused or under Section 145(2) of N.I. Act suo moto by the Court.

3. Summary Procedure under Section 260 to 265 Cr.P.C.

3.1 In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) of Cr.P.C. and his examination if any can be done by Magistrate and a finding can be given by the Court under Section 263(h) of his examination. The same procedure is to be followed by the Magistrates for offence of dishonour of cheque and if during the course of summary trial, it appears to the Magistrate that nature of case was such that it was desirable to try it as a summons trial, he has power to recall any witness who has been examined and proceed to re-hear the case in the manner provided in the Code.

3.2 Onus to prove that no offence is committed is on the accused. If proviso (a), (b) and (c) to Section 138 of N.I. Act are shown to have been complied with, technically the commission of offence stands completed. It is for the accused to show that no offence could have been deemed to be committed by him for some specific reasons and defences. He cannot simply say "I am innocent" or "I plead not guilty"

4. Procedure Prescribed Under Law:

4.1 Cognizance of offence upon examination of complaint, affidavit and documents The procedure as prescribed under law is that along with complaint under Section 138 of N.I. Act, the complainant should file affidavit of his evidence and all necessary documents like dishonour memo,

returned cheque, notice of demand and then learned Magistrate should scrutinize the complaint and documents and if he finds that the affidavit and the documents disclose dishonour of cheque issued by the accused, issuance of a demand notice by the complainant, non-payment of the cheque amount by the accused despite notice, cheque return-memo of the bank etc. and the complaint was filed within the period of limitation, cognizance is to be taken and notice of appearance of accused should be sent to the accused.

4.2 Accused must disclose his defence on the first date of hearing 4.2.1 In case the accused appears before the court of Magistrate, the Court should ask him as to what was his plea of defence. Normally, the first date is wasted by the courts of Magistrate just by taking bail bond of the accused and passing a bail 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 the Court of Magistrate on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of Magistrate as the High Court cannot usurp the powers of Magistrate and entertain a plea of accused why he should not be tried under Section 138.

4.3.2 The plea as to why he should not be tried under Section 138, is to be raised by the accused before the Court of Magistrate under Section 251 and under Section 263(g) of Cr.P.C. Along with his plea, he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of 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 summons trial case. This application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summons trial. 4.4 Onus to prove the defence is on the accused under Section 106 of the Evidence Act, 1872 and it is not violative of Article 21 of the Constitution 4.4.1 An argument is raised that the accused, under Article 21 of Constitution of India, has a right of silence in a criminal trial and therefore he cannot be forced to disclose his defence. This argument is misconceived in view of Section 106 of Indian Evidence Act. Since an offence under Section 138 of N.I. Act is technical in nature and defence which an accused can take are inbuilt, like the cheque was given without consideration, the accused was not Director at that time, accused was a sleeping partner or a sleeping

Director, cheque was given as a security etc. etc., the onus of proving these defences is on the accused alone, in view of Section 106 of Evidence Act. Since the mandate of Legislature is trial of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of Section 145(1) of N.I. Act and has to be read during the trial.

4.4.2 The witnesses i.e. the complainant or other witnesses can be recalled only when accused makes an application and this application must disclose the reason why accused wants to recall the witnesses and on what point witness is to be cross examined. 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 complainant or his witness

cannot be recalled in the court for cross examination only for the sake of pleasure 4.5.1 Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witness(es) and then only the court shall recall the witness by recording reasons thereto.

4.5.2 In most of the cases, the court of Magistrate may not feel necessary that a sentence of imprisonment of more than one year should be inflicted. Unless the court, for reasons to be given, considers that the punishment in a case should be more than one year, the court cannot deviate from the procedure of summary trial and cannot ask the accused to appear again and again and defeat the very purpose of summary trial. Section 143 and 145 of N.I. Act were enacted by the parliament with the aim of expediting trial in such cases. The provisions of 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.

4.6 Service of summons on the accused 4.6.1 Under Section 144 of N.I. Act, service of 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 court can take coercive measures for entering appearance of the accused. Chapter VI of Cr.P.C., under Section 62, 63 and 64, provides how summons are to be served on

accused persons by police. Section 65 thereof provides that if service cannot be effected in the manner as provided in Section 62, 63 or 64 of Cr.P.C., the serving officer shall affix one copy summon on some conspicuous part of his house or area in which the accused resides and the court after making such inquiries may declare that the summons have been duly served. Thus service by affixation is a valid mode of service under criminal law and wherever the 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 should not be tried summarily and all the accused persons must necessary be tried together, then alone the court should ask the accused to wait but if the accused/respondent has a valid defence to show that he need not face trial because of a specific defence and he was prepared to

lead evidence to this effect, he should be directed to lead evidence in support of his plea.

4.7 Settlement by the accused Along with the notice of appearance, in view of the judgment of Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., AIR 2010 SC 1907, the court of 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 sent 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 liberty to make application on the very first day that he wants to compromise and in terms of the judgment given by Supreme Court in Damodar S. Prabhu (Supra) the court should dispose of the case by asking the accused to pay the cheque amount to complainant. The court should also bring to the notice of accused that incase he does not compromise at that stage, and if he enters compromise at subsequent stages then he will have to pay costs in terms of judgment of Supreme Court.

5. Conclusion The summary trial procedure to be followed for offences under Section 138 of Negotiable Instrument Act, 1881 would thus be as under:

5.1 On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned Magistrate shall scrutinize the complaint and documents and if commission of offence is made out, take cognizance and direct issuance of summons of accused, against whom case is made out. 5.2 If the accused appears, the Magistrate shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under Section 145(2) of N.I. Act for recalling

a witness for cross examination on plea of defence. 5.3 If there is an application under Section 145(2) of N.I.

Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. ..."

7. This case is squarely covered by the aforesaid judgment and the petitioner is guilty of gross abuse and misuse of the process of law as:-

7.1 The petitioner did not disclose its defence before the learned Metropolitan Magistrate in terms of the judgment of this Court in Rajesh Aggarwal (supra).

7.2 That apart the petitioner has also chosen not to disclose the defence before this Court.

7.3 Having withdrawn the earlier petition bearing Crl. M.C.3110/2012 on 7th September, 2012, the petitioner cannot file a fresh petition to challenge the territorial jurisdiction.

8. It is also noted that there is undue delay on the part of the petitioner to approach this Court. Against the order dated 10 th January, 2013, the petitioner has approached this Court after unexplained delay of more than nine months.

Imposition of Costs

9. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. The cost should be equal to the benefits derived by the litigants, and the harm and deprivation suffered by the rightful

person so as to check the frivolous litigations and prevent the people from reaping a rich harvest of illegal acts through Court. The costs imposed by the Courts must be the real costs equal to the deprivation suffered by the rightful person and also considering how long they have compelled the other side to contest and defend the litigation in various courts. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. The parties raise fanciful claims and contests because the Courts are reluctant to order prosecution. The relevant judgments in support of this preposition are as under:-

9.1 In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the costs. The relevant paragraphs of the said judgment are reproduced hereunder:-

"52. ...C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. ...

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54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to

actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

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 the 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)

9.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 (3) SCALE 550, 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 Devi and Ors. (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to

prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."

(Emphasis supplied)

9.3 In Padmawati v. Harijan Sewak Sangh, 154 (2008) DLT 411, this Court imposed costs of Rs.15.1 lakhs and noted as under:

"6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equa32l to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from

reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.

xxx xxx xxx

9. Before parting with this case, I consider it necessary to pen down that one of the reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."

(Emphasis supplied)

Conclusion

10. There is no merit in this petition. This petition amount to gross abuse and misuse of process of law. The petitioner has succeeded in delaying the complaint before the learned Metropolitan Magistrate. The petition is therefore dismissed with cost of Rs.30,000/-. The cost be paid by the petitioner to the respondent within four weeks. The learned Metropolitan Magistrate shall resume the proceedings forthwith and shall endeavour to complete trial within six months. The parties shall appear before the learned Metropolitan Magistrate on 26th November, 2013.

11. Copy of this judgment be given dasti to counsel for the petitioner under the signature of the Court Master.

12. Copy of this judgment be also sent to the respondent.

13. The Trial Court record be returned back forthwith.

J.R. MIDHA, J NOVEMBER 07, 2013 dk