The Single Bench of the Delhi High Court in the case of M/S Awadh Constructions vs M/S Amarpreet Shuttering consisting of Justice Rajnish Bhatnagar observed that power u/s 482 CrPC cannot be exercised where the allegations are required to be proved in Court of law.
Facts
The petitioner is a proprietorship and is a civil and structural contractor, who entered into an agreement with the respondent whereby petitioner agreed to hire shuttering and scaffolding material from the respondent initially for a period of six months. The petitioner was required to provide undated security cheque to the respondent to cover full value of the material supply. The same day petitioner sent an email to the respondent conveying the material required. The respondent reverted an email to the petitioner conveying the calculation of advanced amount payable by the petitioner as Rs. 2,63,700/- and the amount to be paid through security cheques as Rs. 77,41,000/-. After some negotiations, respondent agreed to accept Rs. 63,00,000/- as security cheques instead of Rs. 77,41,000/-. Accordingly, the petitioner prepared 5 undated cheques and sent an email to the respondent attaching the scanned copies of these six (6) cheques. Pursuant thereto the work started at the Raipur Project. During work, respondent asked for monies and on that basis, petitioner issued a cheque of Rs. 7,81,122/- in favour of respondent which was returned by Bank.
Procedural History
Respondent sent a legal notice demanding the said amount then the petitioner sent a reply stating that it would make necessary payment. Failing which, respondent filed a complaint u/s 138 NI Act before the Court of learned Additional Chief Metropolitan Magistrate and the petitioner was summoned for the offence u/s 138 NI Act. The petitioner, feeling aggrieved, filed the present petition invoking jurisdiction of this Court u/s 482 CrPC.
Contentions Made
Appellant: The summoning order is bereft of reasons and has been passed in a mechanical manner. There is no enforceable debt or liability for which the respondent can demand any amount. The complaint is based on false averment which is evident from sterling quality documents. Respondent has not approached Court with clean hands as in the first complaint filed against the petitioner, Ushmeet Singh is described as a director of the respondent and board resolution of the board of directors has authorized him. However, in the present complaint, he has been shown as the partner of the respondent and two partners have authorized him to file the complaint, hence, two authorization is not correct.
Observations of the Court
The Bench observed that the plea as to why he should not be tried u/s 138 of the N.I. Act is to be raised by the accused before the Court of the Metropolitan Magistrate u/s 251 and 263(g)of the CrPC. The offence u/s 138 of the N.I. Act being an offence in the personal nature of the complainant, he alone must 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.
In exercise of its jurisdiction u/s 482 CrPC the Court cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts. In the instant case, the defence raised by the petitioners in the petition requires evidence, which cannot be appreciated, evaluated, or adjudged in the proceeding u/s 482 of CrPC. and the same can only be proved in the Court of law. Reliance was placed on State of Madhya Pradesh Vs. Yogendra Singh Jadon & Anr where it was held that power u/s 482 CrPC cannot be exercised where the allegations are required to be proved in Court of law.
Judgment
In the instant case, the issues involve disputed question of facts and law and cannot be decided unless and until the parties go to trial and lead their respective evidence. Hence, this court did not deem it appropriate to issue notice to the respondents and dismissed the petition.
Case Name: M/S Awadh Constructions vs M/S Amarpreet Shuttering
Citation: CRL.M.C. 2840/2021 AND CRL.M.As. 17906-09/2021
Bench: Justice Rajnish Bhatnagar
Decided on: 13th April 2022
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