ISHAN SYSTEMS PVT LTD Vs. VIJAYA BANK

JUDGEMENT

(1.) By way of present petition, the petitioners have sought quashing of complaint under Section 138 of Negotiable Instruments Act titled as "Vijaya Bank vs. Ishan Systems Pvt. Ltd." and summoning order dated 31st August, 2010 passed by learned trial court whereby summons of the petitioners were issued for appearance.

(2.) The contention of the petitioners is that no doubt the petitioners have taken loan from the respondent bank and the cheques issued by the petitioners were presented by the respondent and dishonoured but since the respondent bank had invoked the provisions of Securitization Act, complaint under Section 138 NI Act would not be maintainable. It is submitted that the respondent bank vide its order dated 30th June, 2010 transferred its liability in respect of petitioners to Park Ltd. therefore the bank has no liability left towards the petitioners and it could not have filed the present complaint. The other ground taken is that in this case proceedings under Securitization Act have been initiated and a notice under Section 13(2) of the said Act was issued against the petitioner company, the respondent bank had a right to possess the property of the company situated at Noida, U.P. The necessary provisions of Securitization Act had already been invoked by the bank to take possession. Thus a complaint under Section 138 of NI Act was not maintainable.

(3.) This Court in Rajesh Agarwal v State & Another 171(2010) DLT 51 had made it categorically clear that when summons are issued by the court of MM under Section 138 NI Act, the accused at the time of taking notice under Section 251 Cr.P.C. has to disclose his defence to the court of MM and if the accused does not want to lead evidence in support of his defence, the court will decide the complaint on the basis of evidence of complainant and on the basis of defence raised by the accused, whether the accused was liable to be convicted or not. The proceedings under Section 138 of NI Act are summary in nature and the accused has to disclose to the court of MM his defence and the court of MM is competent enough to decide whether the accused is liable to be convicted under Section on 138 NI Act or not in light of defence raised by him. The accused instead of disclosing his defence to the court of MM cannot approach this Court and disclose his defence to this Court and ask to quash the complaint under Section 138 of NI Act in view of the defence disclosed to this Court. In India, we have division of work in the courts. The High Court cannot transport the cases triable by the Magistrate to itself in the garb of exercising jurisdiction under Section 482 Cr.P.C and start deciding whether a complaint under Section 138 NI Act was maintainable or not. In fact, the Magistrates are appointed for this very purpose only. It is the MM who has to exercise this jurisdiction and to decide, after disclosure of defence by the accused, whether the complaint was maintainable or not. It is only when the accused is not satisfied with the decision of the Magistrate, the remedy of appeal, revision etc lies. No accused can ask the High Court to transport the complaint to itself and adjudicate upon whether the complaint was maintainable in light of the defence raised by him for the first time before the High Court, when he could very well raise the same defence before the court of learned MM. 4. I find that this petition is not maintainable and is hereby dismissed. Let the petitioners approach the court of MM, accept notice and simultaneously give their defence in writing there and make appropriate application.