SECTION 138 NI Act-Framing of notice not mandatory
The criminal Justice System is based on set of
procedure as codified and illustrated in Code of Criminal Procedure 1973. The
substantive offence emanating from Indian Penal Code or any other enactment is generally
governed by the Code of Criminal Procedure. The framing of charge in a warrant
or F.I.R case is a vital stage as the statement of allegation is read over to
the accused and if accused pleads guilty, he can be convicted at that stage
itself. In case the accused pleads not guilty, then after framing of charge,
the evidence commences. The framing of charge in a criminal case is a
substantive stage and the defence is also heard on the aspect of charge and
then order of framing of charge is passed before framing charge. It is also a
settled proposition in law that the court has to apply its mind on the
allegation on prima facie basis,
though at that stage weighing of evidence is not required. The significance of
framing of charge is therefore cannot be overstated in the warrant case/F.I.R
case. As regards the procedure to be followed relating to offence u/s 138 of
Negotiable Instruments Act, the section 251 of Cr.PC is invoked for framing
of notice. It may be noted that in the case u/s 138 of Negotiable instruments
Act the framing of notice is analogous to framing of charge. The broad
parameter of framing of notice and framing of charge are similar, however,
there are departure in a sense that u/s 139 and 118 (a) of Negotiable
instruments Act coupled with Section 20 of the said Act the presumption of
liability of accused is presumed and the accused has to rebut the presumption
with cogent evidence to shift the onus back on the complainant. In conventional
criminal cases, under Indian Penal Code, the prosecution has to prove the guilt
of the accused beyond reasonable doubt. In other words no one shall be held
guilty unless his guilt is proved beyond reasonable doubt. What is of paramount
importance is that whether even non framing of charge in F.I.R case shall be
fatal or it could be dispensed with? The same shall be illustrated later.
In the above backdrop, framing of charge in
F.I.R case and framing of notice for the offence u/s 138 of Negotiable
Instruments Act for cheque bouncing case are para materia same, subject to the finer line of difference as
elucidated above. The question therefore arise that if framing of charge in
F.I.R case cannot be dispensed with, whether, framing of notice for the offence
u/s 138 of Negotiable Instruments Act u/s 251 of Cr.P.C can be dispensed with?
The conventional wisdom may have the answer ‘No”. However, it is held by
hon’ble Delhi High Court in a matter reported as 264 (2019) DLT 493 Nitin Gupta
Va Akash Metal Industrial that framing of notice for the offence u/s
138 of Negotiable Instruments Act is not mandatory. The Supreme Court has also
held accordingly even as regards framing of charge, in a matter reported as Sanichar
Saini Vs State of Bihar V (2009) SLT 29.
ANALYSIS
The provision of section 251 of Cr.P.C may be perused before
going further:
251.
Substance of accusation to be stated. When in a summons- case the accused
appears or is brought before the Magistrate, the particulars of the offence of
which he is accused shall be stated to him, and he shall be asked whether he
pleads guilty or has any defence to make, but it shall not be necessary to
frame a formal charge.
Moreover, as per the provisions of section 252 of Cr.P.C, if
the accused pleads guilty, the Magistrate shall record the plea and may in his
discretion convict him.
It is held in Nitin Gupta (Supra) in paragraph
no.12 as under:
“In terms of Section 143 of Negotiable Instruments Act,
subject to the provision as per normal rule, the proceedings u/s 138 of
Negotiable Instruments Act are summary in nature. On appearance of the accused,
the magistrate is required to explain the substance of accusation to the
accused and ask him whether he would plead guilty or has any defence to make,
however, in terms of mandate of the section, it would not be necessary to frame
a formal notice”.
What could be deduced from above is that upon appearance of
accused if the substance of accusation is stated to him and if he pleads not
guilty and claims trial that is sufficient and there is no mandate to frame a
formal notice. The hon’ble High court has further elicited support from the
provision of Section 464 of Cr.P.C which provides that :
“ No findings , sentence or order by a court of competent
jurisdiction shall be deemed invalid merely on the ground that no charge was
framed or on the ground of any error, omission or irregularity in the charges,
unless, in the opinion of the Court of appeal, confirmation or revision, w
failure of justice is occasioned thereby”.
A Constitution Bench of Supreme
Court in Willie (William) Slaney Vs
State of M.P, AIR 1956 SC 116, considered the issue of non- framing of charges properly and
conviction of an accused for the offences for which he has not been charged and
reached the conclusion as under:-
"In such a situation,
the absence of a charge under one or other of the various heads of criminal
liability for the offence cannot be said to be fatal by itself, and before
a conviction for the substantive offence, without a charge, can be set
aside, prejudice will have to be made out. .... ..... .... If it is so grave
that prejudice will necessarily be implied or imported, it may be described as
an illegality. If the seriousness of the omission is of a lesser degree, it
will be an irregularity and prejudice by way of failure of justice will have to
be established".
The Supreme Court in Gurpreet
Singh Vs State of Punjab (2005) 12 SCC 615 and State of A.P Vs Thakidiram Reddy,
(supra) and held that unless there is failure of justice and thereby the cause
of the accused has been prejudiced, no interference is required if the
conviction can be upheld on the basis of evidence led against the accused. The
Court should not interfere, unless, it is established that the accused persons
were in any way prejudiced due to the errors and omissions in framing the
charges against him.
A similar view has
been reiterated by this Court in Ramji
Singh Vs State of Bihar (2001) 9 SCC 528.
Therefore, the law on
the issue can be summarized to the effect that unless, the convict is able to
establish that defect in framing the charges has caused real prejudice to
him and that he was not informed as what was the real case against him and that
he could not defend himself properly, no interference is required on mere
technicalities. Conviction order in fact is to be tested on the touchstone of
prejudice theory.
The trial court had
passed the following order in Nitin Gupta
(Supra) case:
“
The complainant to supply the complete set of documents with acknowledgement of
the accused and pone additional set be filed on court record. If the copies of
documents are not supplied, accused can take same from Court Record.”
The matter was also referred to mediation ,
though, that was failed. Therefore, the
accused was well aware about the accusation. On the request of counsel for
accused, the time was granted for filing application u/s 145(2) of Negotiable
Instruments Act for seeking cross examination of complainant witness.
In the above
perspective the Delhi High Court in Nitin Gupta (Supra) has held as
under:
18.
In my opinion, as per mandate of the Section 251, Cr.P.C no formal notice is
required to be framed so long as the substance of the accusation is stated and
the accused is asked whether he pleads guilty or intent to lead any defence
evidence. During the course of arguments, learned counsel for petitioner failed
to point out as to what prejudice has been suffered on account of non framing
of formal notice”.
The High Court has thus clearly recorded the fact
that when the accusation was well known to the accused and when time for filing
application u/s 145(2) of Negotiable Instruments Act was sought and yet the
application was not filed and thereafter several opportunity were granted for
this purpose and finally the right to file the said application u/s 145(2) of
NI Act was closed. The statement of accused u/s 313 of Cr.P.C was recorded. Even opportunity for leading defence evidence
was given on multiple dated, but no defence evidence was lead. Ironically,
after 2 ½ years the petition was filed for seeking to raise an issue of non
framing of notice and therefore dilatory tactics is evident.
CONCLUSION
From the foregoing what transpires is as to whether
framing of notice or even framing of charge shall be the sine qua non for conclusion of trial. The bare perusal of judgments
of Supreme Court as illustrated above have clearly established that the same
shall not be necessary, unless, miscarriage of justice is caused. The non
framing of charge or non framing of notice therefore shall not be fatal to the
case of prosecution. It is therefore no res
integra that the court shall not interfere in the non framing of charge or
non framing of notice, as the case may be, unless, any serious prejudice is
caused and miscarriage of justice is occasioned to the accused. What therefore
emerges is that notwithstanding the fact that framing of charge or framing of
notice is an important stage of a criminal case whether a warrant case or a
summon case, still, non framing of charge or non framing of notice in itself
shall not vitiate the proceedings, unless any miscarriage of justice is
occasioned thereby.
----------
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
No comments:
Post a Comment