Section 138-147 of Negotiable Instruments Act: SET
TO BE OVERHAULED
Suo Motu cognizance by hon’ble Supreme Court
by way of ordering registering W.P (Crl) No.2 Of 2020- EXPEDITIOUS TRIAL OF
CASES UNDER SECTION 138 OF N.I. ACT 1881
Anil
K Khaware
Advocate
In the face of relentless cases of
bouncing of cheques, the necessity was felt to make bouncing of cheque as
criminal offence, to restore the confidence in transaction of cheques and to accord
fillip in business milieu. The Section
138-142 was thus introduced in Negotiable Instruments Act, vide 1988 amendment
in the said Act (w.e.f 01.04.1989). There has been series of amendments thereafter
and judicial dicta were also being laid down to face emerging situation. There
are also instances where some procedure was prescribed once and proscribed
later. No doubt, the Act and rules framed thereunder has to stand the test of
time and even vicissitude. The changes
are often stipulated with a view to remove obstacles in its midst. The principles
of issue of bouncing of cheques as contained under section 138-148 ( Now NI Act
has 148 Sections after 2018 amendment) of the Act, though served its purpose
all the while, but, the provision, it appears is still to set in, given the
dynamics.
In this backdrop, the taking up of the
issue by the hon’ble Supreme Court (Five (5) Judge bench- CORAM: S. A. BOBDE,
hon’ble Chief Justice, L. NAGESWARA RAO, Justice B. R. GAVAI, Justice
A. S. BOPANNA & Justice S. RAVINDRA BHAT), on 21st April 2021, in
a matter captioned as SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020 and In
Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881 is quite
significant. The fact that Five (5) Judge bench has been constituted and amicus
(amici) was appointed is a testimony, the apex court is concerned about finding
a smooth way out to the procedural wrangles in the proceedings u/s 138 of NI
Act. The dockets of cheque bouncing complaints are increasing by the day, and
therefore, the concerns are legitimate. The hon’ble Supreme Court has been
pleased to issue various directions in view of extra-ordinary delay being caused
in disposal of matters u/s 138 of Negotiable instruments Act. The registry of the Supreme Court, was
thus directed to register a Suo Motu Writ
Petition (Criminal) captioned as “Expeditious Trial of Cases under Section 138
of N.I. Act 1881 and the hon’ble Supreme Court is conducting the proceedings in
this regard.
IN RETROSPECT
The historical perspective may be imperative to understand the
matter holistically. The Chapter XVII inserted in the Negotiable Instruments Act,
containing Sections 138 to 142, came into force on 01.04.1989. The dishonour of
cheques for insufficiency of funds was made punishable with imprisonment for a
term of one year or with fine which
may extend to twice the amount of the cheque as per Section 138 of the Act. The
section 139 of the Act is a necessary corollary to section 138 , since, it relates
to the presumption in favour of the holder that the cheque so received, was for
the discharge, in whole or in part, of any debt or other liability. The accused
shall be entitled to defence, if presumption u/s 139 is rebutted by the
accused, then, the onus shall shift on the complainant to prove consideration.
However, there may be prospective defence which may not be allowed in a
prosecution under Section 138 of the Act is contained in Section 140 of NI Act.
On the other hand, section 141 pertains to offences by companies, whereas, Section
142 lays down conditions, under which cognizance of offences may be taken under
Section 138 of the Negotiable Instruments Act. Despite the provisions as
encapsulated above, imminent need was felt for remedying the situation under
the Act and the same was addressed by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002. Sections 143 to 147 were inserted in the Act,
which came into force on 06.02.2003. Section 143 of the Act empowers the court
to try complaints filed under Section 138 of the Act, summarily,
notwithstanding, anything contained in the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’). Sub-section (3) of Section 143
(inserted in the Act in the year 2002), stipulates that an endeavour be made to
conclude the trial within Six (6) Months from the date of filing of the complaint.
The procedural aspects are further made explicit under section 144 of NI Act that
deals with the mode of service of summons. What is of utmost importance is the
provision u/s 145 which postulates that the evidence of the complainant could
be given on affidavit and may be read as evidence in any inquiry, trial or
other proceeding under the Code.
As regards bank memo, it is specified u/s 146 of the NI
Act that Bank’s slip or memo denoting that the dishonouring of cheque is
presumed to be prima facie evidence of
the fact of dishonour of the cheque. So far as section 147 of NI Act is
concerned, it makes offences punishable under the NI Act, compoundable. We know
that Section 320 Cr.P.C contains sections of Indian Penal Code which may be
compoundable or non-compoundable depending on the severity of offence. Since
Section 138 is part of NI Act and the provision has been part of statute book,
since then, but there being no corresponding provision for compounding of
offence, hence, it was felt desirable that option of compounding in sync with
lighter offences under various provisions of Indian Penal Code may be allowed
to apply in the offence u/s 138 of NI Act on the same analogy. Thus, section
147 of the NI Act has specifically been provisioned for. Section 148 relates to
power of appellate court in imposing pre-deposit as a condition precedent to hear appeal. The punishment prescribed under
the Act was enhanced from one year to two years, along with other amendments made
to Sections 138 to 142 effective from 06.02.2003.
The major stumbling
block/cause of concern in the proceedings under section 138 of NI Act as
may be culled out from the responses filed by the State Governments and Union Territories
to the present writ petition in question, before the hon’ble Supreme Court are as
under:
a) Service of summons
b) Statutory amendment to Section 219 of the Code
c) Summary trials
d) Attachment of bank accounts
e) Applicability of Section 202 of the Code
f) Mediation
g) Inherent jurisdiction of the Magistrate
The 2003 amendment was earlier made in
NI Act, keeping in view the recommendations of the Standing Committee on
Finance and other representations, it has been decided to bring out, inter
alia, the following amendments in the Negotiable instruments Act,1881,
namely:--
(i) to increase the punishment as prescribed under
the Act from one year to two years;
(ii) to increase the period for issue of notice
by the payee to the drawer from 15 days to 30 days;
(iii) to provide discretion to the court to waive
the period of one month, which has been prescribed for taking cognizance of the
case under the Act;
(iv) to prescribe procedure for dispensing with
preliminary evidence of the complainant;
(v) to prescribe procedure for servicing of
summons to the accused or witness by the court through speed post or empanelled
private couriers;
(vi) to provide for
summary trial of the cases under the Act with a view to speeding up disposal of
cases;
(vii) to make the offences under the Act compoundable;
(viii) to exempt those directors from prosecution
under Section 141 of the Act who are nominated as directors of a
company by virtue of their holding any office or employment in the Central Government
or State Government or a financial corporation owned or controlled by the
Central Government, or the State Government, as the case may be;
(ix) to provide that the Magistrate trying an
offence shall have power to pass sentence of imprisonment for a term exceeding
one year and amount of fine exceeding five thousand rupees;
(x) to make the Information
technology Act 2000 applicable to the Negotiable Instruments Act, 1881 in
relation to electronic cheques and truncated cheques subject to such
modifications and amendments as the Central Government, in consultation with
the Reserve Bank of India, considers necessary for carrying out the purposes of
the Act, by notification in the Official Gazette; and
(xi) to amend
definitions of "bankers' books" and "certified copy" given
in the Bankers' Books Evidence Act,1891.
THE COMMITTEE
As elucidated above, the dockets of the complaints u/s 138 NI
Act kept on increasing notwithstanding, the amendments, the hon’ble Supreme
Court has been pleased to take suo motu
cognizance of the issues and is further pleased to have constituted a Committee
with Hon’ble Mr. Justice R.C. Chavan, former Judge of the Bombay High Court, as
the Chairman to consider various suggestions that are made for arresting the
explosion of the judicial docket. The committee inter alia shall consider, if:
(i)
the attachment of bank account of the accused to the extent of
cheque amount should be allowed;
(ii)
Pre-summoning mediation should be made norm;
(iii)
additional courts are needed for the purpose of trying 138 NI
Act cases;
(iv)
any other issue/s raised in the preliminary report or written
submissions of Amici Curie need to be factored;
(v)
trial court should have power to recall summons and for that
purpose amendments in the NI Act could be recommended; &
(vi) any other
issue that may arise during consideration.
The hon’ble Supreme Court is likely to take a view on the
recommendation of the Committee in due course.
MECHANICAL CONVERSION OF SUMMARY TRIAL TO SUMMONS
TRIAL
The
hon’ble Supreme Court has also issued following directions and observed as
under:
(i)
The Section 143 of the Negotiable Instruments Act was inserted
in the Act in 2002 with a view to aid quick disposal of complaint u/s 138 of NI
Act. The object of Section 143 of the NI Act has been to ensure quick disposal
of the complaints under Section 138 by following the procedure prescribed for
summary trial under the Code, to the extent possible. It was expected that the
discretion conferred on the Magistrate by the second proviso to Section 143 of
the NI Act would be exercised with due care and caution, after recording
reasons for converting the trial of the complaint from summary trial to summons
trial. The principle is there well illustrated in Mandvi Cooperative
Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, lest, the purpose for which
Section 143 is enacted is defeated. It is a matter of concern, in this backdrop,
that in routine conversion of summary case to summon case is being done with
impunity. The hon’ble Supreme Court has this requested the High Courts to issue
practice directions to the Magistrates inter
alia to record reasons before converting trial of complaints under Section
138 of NI Act from summary trial to summons trial in exercise of power under
the second proviso to Section 143 of the Act.
(i)
The hon’ble Supreme Court has earlier held in Vijay Dhanuka & Ors
Najima Mamtaj & Ors (2014) 14 SCC 638 Abhijit
Pawar Vs Hemant Madhukar Nimbalkar and Anr. 2017) 3 SCC 528 and Birla Corporation Limited v. Adventz Investments
and Holdings Limited & Ors (2019) 16 SCC
610 that Inquiry by Magistrate should be conducted, in
cases, accused resided outside the territorial limit of the court, where
complaint is instituted and before
issuance of summons to the accused residing outside the jurisdiction of the
court. Broadly similar ratio is in a matter is reported as K.S. Joseph v. Philips
Carbon Black Ltd & Anr (2016) 11 SCC 105.
(ii)
It is also directed that the Magistrate should come to a
conclusion after holding an inquiry that there are sufficient grounds to
proceed against the accused. Moreover, Section 202 (2) should be read along
with Section 145 of NI Act. We know that section 202 of the Code as
amended effective 23.06.2006, mandates a Magistrate to conduct inquiry before
issuing summons, in case, accused resides beyond territorial jurisdiction of
such courts
(iii)
The hon’ble Supreme Court has held that Section 145 of the NI
Act is an exception to Section 202 of Cr.P.C and only in exceptional cases, the Magistrate may examine
the witnesses personally in respect of
complaints under Section 138 of NI Act. The
inquiry
u/s 202 of Cr.P.C and section 145 of NI act is a must, and as per that complainant should be examined by
way of an affidavit. There is no specific provision in relation to examination
of the witnesses or accused also on affidavit in Section 145 of NI Act. The section
145 had been inserted in the Act, w.e.f 2003, with a view to expedite trials in
complaints filed under Section 138 of NI Act. If the evidence of the
complainant may be given by him on affidavit, there is no reason for insisting
on the evidence of the witnesses to be taken on oath. On a holistic reading of
Section 145 of NI Act, along with Section 202 of Cr.P.C, it is held that
Section 202 (2) of the Code is inapplicable to complaints under Section 138 of
NI Act, in respect of examination of witnesses on oath. In suitable cases, though,
the Magistrate can examine documents for satisfaction as to the sufficiency of
grounds for proceeding under Section 202 of Cr.P.C.
(iv)
The direction issued by hon’ble Supreme Court is to the effect that
a provision be made in the NI Act that a person can be tried in one trial for
offences of the same kind under Section 138 in the space of 12 months,
notwithstanding, the restriction in Section 219 of the Code. One way of
reducing the time spent on service of summons is to treat service of summons
served in one complaint pertaining to a transaction as deemed service for all
complaints in relation to the said transaction. Accordingly, the High Courts
are requested to issue practice directions to the Trial Courts to treat service
of summons in one complaint forming part of a transaction, as deemed service,
in respect of all the complaints filed before the same court relating to
dishonour of cheques issued as part of the said transaction.
(v)
The judgments of Supreme Court reported as Adalat Prasad v. Rooplal Jindal
and Others (2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra & Anr (2004)
13 SCC 324. does not warrant any reconsideration. The Trial Court cannot be
conferred with inherent power either to review or recall the order of issuance
of process. Earlier, in a matter reported as Union
of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323, the Supreme Court, in its anxiety to cut down
delays in the disposal of complaints under Section 138 of NI Act, was pleased
to permit application of Section 258 of Cr.P.C to hold that the Trial Court has
the power to discharge the accused even for reasons other than payment of
compensation. However, the hon’ble Supreme Court has observed that amendment to
the NI Act empowering the Trial Court to reconsider/recall summons may be
considered on the recommendation of the Committee constituted as per above, by the
Supreme Court.
(vi) The Magistrate shall have power under
Section 322 of the Code, to revisit the order of issue of process, if he has no
jurisdiction to try the case. If the trial Court is informed that it lacks
jurisdiction to issue process for complaints under Section 138 of the Act, the
proceedings shall be stayed and the case shall be submitted to the Chief
Judicial Magistrate or such other Magistrate having jurisdiction. The Adalat Prasad (Supra), though, is not
tinkered with, but leeway is accorded to the accused who are wrongly summoned
or to Magistrate. In the light of above, the High courts are requested to
identify the pending revisions arising out of complaints filed under Section
138 of the NI Act and refer them to mediation at the earliest. Moreover, it is
observed that the Courts before which appeals against judgments in complaints
under Section 138 of the Act are pending should be directed to make an effort
to settle the disputes through mediation.
SECTION 219 & 220 Cr.P.C
The judgment of this Court in Vani Agro Enterprises v. State
of Gujarat & Ors 2019 (10) scj 238 needs clarification. In Vani Agro (supra), this Court was dealing
with the dishonour of four cheques which was the subject matter of four
complaints. The question raised therein related to the consolidation of all the
four cases. As only three cases can be tried together as per Section 219 of the
Code, the Supreme Court directed the
Trial Court to fix all the four cases on one date. The course adopted by this
Court in Vani
Agro (supra)
is appropriate in view of the mandate of Section 219 of the Code. Hence, there
is no need for any clarification, especially in view of the submission made by
the learned Amici that Section 219 be amended suitably. The Supreme Court has observed
that that one trial for more than three offences of the same kind within the
space of 12 months in respect of complaints under Section 138 can only be by an
amendment. To reduce the burden on the docket of the criminal courts, it is recommended
by the apex court that a provision be made in the Act, to the effect that, a person can be tried in one trial for
offences of the same kind under Section 138 in the space of 12 months,
notwithstanding the restriction in Section 219 of the Code. It is observed:
“ Offences that are committed as
part of the same transaction can be tried jointly as per Section 220 of the
Code. What is meant by “same transaction” is not defined anywhere in the Code.
Indeed, it would always be difficult to define precisely what the expression
means. Whether a transaction can be
regarded as the same would necessarily depend upon the particular facts of each
case and it seems to us to be a difficult task to undertake a definition of
that which the Legislature has deliberately left undefined. We have not come
across a single decision of any court which has embarked upon the difficult
task of defining the expression. But it is generally thought that where there
is proximity of time or place or unity of purpose and design or continuity of
action in respect of a series of acts, it may be possible to infer that they
form part of the same transaction. It is, however, not necessary that every one
of these elements should co-exist for a transaction to be regarded as the same.
But if several acts committed by a person show a unity of purpose or design
that would be a strong circumstance to indicate that those acts form part of
the same transaction7. There is no ambiguity in Section 220 in accordance with
which several cheques issued as a part of the same transaction can be the
subject matter of one trial”.
INHERENT POWERS OF THE
MAGISTRATE
It was also contended that a
holistic reading of Sections 251 and 258 of the Code, along with Section 143 of
the Act, should be considered to confer a power of review or recall of the
issuance of process by the Trial Court in relation to complaints filed under
Section 138 of the Act. The judgment of Supreme Court was referred as reported in
Meters and Instruments Private Limited
and Another v. Kanchan Mehta (2018) 1 SCC 560 which reads as follows:
“While it is true that in Subramanium Sethuraman (Supra) this
Court observed that once the plea of the accused is recorded under Section 252
CrPC, the procedure contemplated under Chapter XX CrPC has to be followed to
take the trial to its logical conclusion, the said judgment was rendered as per
statutory provisions prior to the 2002 Amendment. The statutory scheme
post-2002 Amendment as considered in
Mandvi Coop. Bank and J.V. Baharuni
has brought about a change in law and it needs to be recognized. After the 2002
Amendment, Section 143 of the NI Act confers implied power on the Magistrate to
discharge the accused if the complainant is compensated to the satisfaction of
the court, where the accused tenders the cheque amount with interest and
reasonable cost of litigation as assessed by the court. Such an interpretation
was consistent with the intention of legislature. The court has to balance the
rights of the complainant and the accused and also to enhance access to
justice. Basic object of the law is to enhance credibility of the cheque
transactions by providing speedy remedy to the complainant without intending to
punish the drawer of the cheque whose conduct is reasonable or where
compensation to the complainant meets the ends of justice. Appropriate order
can be passed by the court in exercise of its inherent power under Section 143
of the Act which is different from compounding by consent of parties. Thus,
Section 258 CrPC which enables proceedings to be stopped in a summons case,
even though strictly speaking is not applicable to complaint cases, since the
provisions of Cr.PC are applicable “so far as may be”, the principle of the
said provision is applicable to a complaint case covered by Section 143 of the
Act which contemplates applicability of summary trial provisions, as far as
possible i.e. with such deviation as may be necessary for speedy trial in the
context.”
In K. M. Mathew v. State of
Kerala & Anr (1992) 1 SCC 217, the Supreme Court has dealt with the power of the
Magistrate under Chapter XX of the Code after the accused enters appearance in
response to the summons issued under Section 204 of the Code. It was held that
the accused can plead before the Magistrate that the process against him ought
not to have been issued and the Magistrate may drop the proceedings if he is
satisfied on reconsideration of the complaint that there is no offence for which
the accused could be tried. This Court was of the opinion that there is no
requirement of a specific provision for the Magistrate to drop the proceedings
and as the order issuing the process is an interim order and not a judgment, it
can be varied or recalled. The observation in the case of K. M. Mathew (supra) that no specific
provision of law is required for recalling 8 (1992) 1 SCC 217 an erroneous
order of issue of process was held to be contrary to the scheme of the Code in Adalat Prasad(Supra)
. It was observed therein that the
order taking cognizance can only be subject matter of a proceeding under
Section 482 of the Code as subordinate criminal courts have no inherent power.
There is also no power of review conferred on the Trial Courts by the Code. As
there is no specific provision for recalling an erroneous order by the Trial Court,
the judgment in the case of K. M. Mathew (supra) was held to be not laying down correct law.
The question whether a person can seek discharge in a summons case was
considered by the Supreme Court in Subramanium Sethuraman (Supra)
. The
law laid down in Adalat Prasad (supra) was reiterated.
Earlier, the hon’ble
Supreme Court in a matter reported as Indian
bank Association vs Union of India & Anr (2014) 5 SCC 590 had issued
the following directions:
(1)
Metropolitan Magistrate/Judicial Magistrate should scrutinize the documents on
the day when the complaint Under Section 138 of the Act is presented, and, if
the complaint is accompanied by the affidavit, and the affidavit and the
documents, if any, are found to be in order, take cognizance and direct
issuance of summons.
(2) The Magistrates should
adopt a pragmatic and realistic approach while issuing summons. Summons must be
properly addressed and sent by post as well as by e-mail address got from the
complainant. Court, in appropriate cases, may take the assistance of the police
or the nearby Court to serve notice to the accused. For notice of appearance, a
short date be fixed. If the summons is received back un-served, immediate
follow up action be taken.
(3)
Court may indicate in the summon that if
the accused makes an application for compounding of offences at the first
hearing of the case and, if such an application is made, Court may pass
appropriate orders at the earliest.
If
one may set the clock back, for reference, the hon’ble Delhi High Court in a
matter captioned as Rajesh Agarwal & Others Vs State &
Another
171 (2010) DLT 51 had laid down the following procedure
to
be followed for offences u/s 138 N.I. Act would thus be as under:
|
STEP
1 |
On
the day complaint is presented, if the complaint is accompanied by affidavit
of complainant, the concerned MM shall scrutinize the complaint &
documents and if commission of offence is made out, take cognizance &
direct issuance of summons of accused, against whom case is made out. |
|
STEP
2 |
If
the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance
during trial and ask him to take notice u/s 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. |
|
STEP
3 |
If
there is an application u/s 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. |
|
STEP
4 |
To
hear arguments of both sides. |
|
STEP
5 |
To
pass order/judgment. |
It
was observed by the hobn’ble Delhi High Court, in the above case, that in most
of the cases, the court of Metropolitan Magistrate may not feel necessary that
a sentence of imprisonment of more than one year should be inflicted, unless,
reasons to the contrary are recorded. 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. If an accused feels that he has a
substantive defence and that the complaint against him is not maintainable,
then on the very first day of his appearance, he may file an affidavit in his
defence if he is so advised and/or he can also file an application for
recalling any of the witnesses for cross examination on the defence taken by
him.
It
is further held that in view of the judgment of Supreme Court in Damodar S.
Prabhu vs. Sayed Babalal H (2010) 5 SCC 663, decided on 3rd May, 2010, the
court of Metropolitan Magistrate should also inform the accused that in case if
he wants to make the payment of the cheque amount to the complainant and the
case would thus come to an end. The application on the very first day could be
field seeking compromise and in terms of the judgment given by SC in Damodar S.
Prabhu (Supra). The court should also bring to the notice of accused that in no
compromise is proposed , then at subsequent stages then he will have to pay
costs in terms of judgment of Supreme Court.
In
Mandvi Cooperative Bank Limited v.
Nimesh B. Thakore (2010) 3 SCC 83, It is held:
“
The scope of Section 145 came up for consideration before this Court and the
same was explained in that judgment stating that the legislature provided for
the complainant to give his evidence on affidavit, but did not provide the same
for the accused. The Court held that even though the legislature in their
wisdom did not deem it proper to incorporate a word accused with the word
complainant in Section 145(1), it does not mean that the Magistrate could not
allow the complainant to give his evidence on affidavit, Indian Bank Association & Ors
(Supra), unless there was
just and reasonable ground to refuse such permission.
It may be noted that the provisions of Sections
143, 144, 145, and 147 are express departure from and override the
provisions of the Code of Criminal Procedure, the main body of criminal trials.
The provisions of Section Section 146 of NI Act relating to Bank
Memo, similarly is also a departure from the provisions of the Indian
Evidence Act. Section 143 of NI Act makes it possible for the complaints
under section 138 of the Act to be tried in the summary manner,
except, of course, for the relatively small number of cases where the
Magistrate feels that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be passed or that it is,
for any other reason, undesirable to try the case summarily. It is, however,
significant that the procedure of summary trials is adopted under section
143 subject to the qualification "as far as possible", thus,
leaving sufficient flexibility so as not to affect the quick flow of the trial
process. Even while following the procedure of summary trials, the non-obstante
clause and the expression "as far as possible" used in section 143,
coupled with the non-obstante clause in section 145 allows for the
evidence of the complainant to be given on affidavit, that is, in the absence of
the accused. The Sub-section (3) of section 143 mandates that the
trial would proceed, as far as practicable, on a day-to-day basis and
sub-section (4) of the section requires the Magistrate to make the endeavour to
conclude the trial within six months from the date of filing of the
complaint. Still further, section 144, makes the process of service
of summons simpler and seeks to cut inordinately long time in requisites like
service of summons.
In Indian
Bank Association Vs Union of India & Anr (2014) 5 SCC 590, the
Supreme Court had observed:
“We
have indicated that under Section 145 of the Act, the complainant can give his
evidence by way of an affidavit and such affidavit shall be read in evidence in
any inquiry, trial or other proceedings in the Court, which makes it clear that
a complainant is not required to examine himself twice i.e. one after filing
the complaint and one after summoning of the accused. 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. In other words, there is no
necessity to recall and re- examine the complaint 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 the Act suo motu by the Court. In summary
trial, after the accused is summoned, his plea is to be recorded under Section
263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a
finding can be given by the Court under Section 263(h) Cr.P.C. and the same
procedure can be followed by a Magistrate for offence of dishonour of cheque
since offence under Section 138 of the Act is a document based offence. We make
it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are
shown to have been complied with, technically the commission of the offence
stands completed and it is for the accused to show that no offence could have
been committed by him for specific reasons and defences”.
REMARK
That
the hon’ble Supreme Court has taken suo
motu note of impediments being faced in proceedings under Section 138 of
Negotiable Instruments Act is significant. What is more significant, though is,
that, Five (5) judge Bench has been constituted and slew of directions are
passed in the suo motu writ petition.
The committee headed by retired justice of Bombay High Court judge is in place,
to recommend further, as to what are needed to be done, to enforce, expedition,
in section 138 NI Act cases/complaints. The scope of the committee is unlimited
and it is empowered to have holistic look into the matter and then to submit
report. The hon’ble Supreme Court while issuing practice direction that may be
necessary to be issued through respective high courts for the proceedings u/s
138 of Negotiable Instruments Act, have also noted that there are certain
issues which can be addressed only by way of the amendment in the Negotiable
Instruments Act. The last is therefore not heard of and the probable changes could
be mooted, only after the report is submitted by the committee, and only then, the
clear picture may emerge. What, however, is clear that the overhaul in the
proceedings and provisions of section 138 of Negotiable Instruments Act is the
need of hour and the same is likely to be in statute book soon. No doubt, designating
more courts for NI Act cases shall be necessary, but, what is of further
importance is that, the Magistrates should be directed not to adjourn the matters
beyond a month. It is quite common in the court of Magistrates dealing with
section 138 of NI Act to postpone/adjourn the matter for longer dates. Further,
the cases u/s 138 of NI Act and recovery of money is not considered urgent,
this classification and assumption need to change, in as much as, the process
of law should aid the aggrieved party approaching courts and should not
unwittingly be subject to wrangles. Whether for commercial purposes or for livelihood,
the claim of the complainant/claimant should be disposed of on early dates and
in time bound manner. The commerce or individual need if comes to halt, in
effect the repercussion is on nation. Any vibrant democracy should not only
crave for speedy disposal of cases, but should accentuate that by all means. What
may cause further consternation is that whereas there is already huge pendency
in delay in disposal of section 138 NI Act cases, but, but mandating the
Magistrate to have a complete look u/s 202(2) of Cr.P.C necessitating inquiry
to the satisfaction of Magistrate before issuing summons to the accused,
outside the territorial limit of the said court, may itself cause delay. Several
hearings may be consumed in that. As per the NI Amendment Act, 2018, the
earlier situation of enabling a complaint to file complaint in a court, within
the territorial limit thereof cheques are bounced is restored and therefore,
emphasis on section 202(2) in the aforesaid terms may not be necessary. It is
hoped that as the hon’ble supreme court has left open all such aspects to the
committee, it may be duly dealt with by the committee. It may be noted that earlier,
in Dashrath Rupsingh Rathod vs State Of Maharashtra
& Anr AIR 2014 SC 3519, judgment of hon’ble Supreme Court, the rule
was changed and the branch of the accused bank and its location was construed
as the one where cause of action for filing case had arisen. As, now, the
situation is altered to pre- Dasrath Singh Rup Singh Rathod case (supra) , it
should serve the purpose if the mandatory inquiry u/s 202 (2) of Cr.P.C before
issuing summons are dispensed with.
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