ORDER
J.P. Singh, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure for setting aside order dated 21.10.2005 directing framing of notice under Section 251 of the Code of Criminal Procedure in a matter under Section 138 of Negotiable Instruments Act.
2. I have heard Mr. Satish Tamta learned counsel for the petitioner on the point of admission and have gone through copies of the documents placed on the file.
3. Persual of the complaint shows that the accused No. 1-Company and its whole time Directors had approached the complainant for grant of short term loan facility of Rs. 100 lacs as per loan agreement dated 15.3.2002 executed between the complainant and accused No. 1-Company. The accused No. 1 issued three cheques mentioned in para No. 4 of the complaint towards part payment of the loan. The said cheques were dishonoured.
4. It is averred in para-2 of the complaint that accused No. 2 is the Managing Director and accused No. 3 to 6 are whole time Directors of accused No. 1-Company. Accused No. 2 to 6 are/were the persons responsible for day to day work of accused No. 1-Company and it is repeated in para-9 of the complaint that accused No. 2 to 6 were/are, at the time when the offence was committed, responsible to accused No. 1 for conduct of day to day business of accused No. 1-Company and as such guilty of offences under Section 138 read with Section 141 & 142of the Negotiable Instruments Act.
5. The present petition has been filed on behalf of accused No. 5. Learned counsel for the petitioner has argued that there are no proper averments and the notice has been framed mechanically and has relied upon the judgment titled Vijaya Rao v. State of Rajasthan and Anr. reported in (2005) 7 SCC 69. There were allegations of mis appropriation of the capital amount and interest belonging to the debenture-holders and thus loss was caused to the debenture-holders and the accused persons were summoned under Section 420 of the Indian Penal Code. The Supreme Court of Indian opined that merely using the expression “fradulant misappropriation and malafide intention” do not disclose as to how the accused could be found to be guilty of the offence under Section 420 IPC because the ingredients of that offence are lacking in the compliant and in the result the compliant was quashed qua the appellant before the Supreme Court.
6. I may say that facts and circumstances vary from case to case. In a complaint under the Negotiable Instruments Act, on the basis of dishonour of cheques issued by accused there is a presumption against the accused, whereas under Section 420 IPC there is no such presumption against the accused. In my view the cited judgment is not applicable to the present case.
7. By now it is well established that if there are requisite averments in the compliant then the matter shall proceed further for expeditious disposal and whatever defense is to be raised should be raised before the concerned magistrate. I have dealt with this matter extensively in a matter bearing Crl.M.C. No. 493/2005 titled Madan Aggarwal v. State and Anr. decided on 24.1.2006 and I need cite only one judgment regarding the contentions raised by learned counsel for the petitioner [Raj Lakshmi Mills v. Shakti Bhakoo (3 Judges Bench)]. In this judgment also it is opined that defense is to be raised before the trial court and not before the High Court, under Section 482 of the Code of Criminal Procedure.
8. Needless to say that the Negotiable Instruments Act has been amended repeatedly and by way of the latest amendment in the year 2002 the sentence of imprisonment has been enhanced from 1 years to 2 years and the magistrates are duty bound to dispose of the matters as expeditiously as possible, preferably within 6 months (Section 143 of the Negotiable Instruments Act). I am, therefore, of the view that intervention under Section 482 of the Code of Criminal Procedure can be made only when there is a gross illegality on the face of the complaint or the summoning order, which is not evident in this case.
9. Considering all the facts and circumstances of the case, I do not find any justification for interference under Section 482 of the Code of Criminal Procedure. The petition is intended to delay the matter. The same is, therefore, dismissed with Rs. 2500/- as costs to be deposited in Delhi High Court Legal Services Committee [Mary Angel and Ors. v. State of Tamil Nadu reported in (1999) SCC 209].
10. The trial court is, however, directed to dispose of the matter as expeditiously as possible.
11. Nothing said herein will tantamount to expression of opinion on the merits of the case.