REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.18 OF 2013
Indian Bank Association and others … Petitioners
Versus
Union of India and others … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. This Writ Petition, under Article 32 of the Constitution of India,
has been preferred by the Indian Banks’ Association (IBA) along with Punjab
National Bank and another, seeking the following reliefs :-
a. Laying down appropriate guidelines/directions to be followed by all
Courts within the territory of India competent to try a complaint
under Section 138 of the Negotiable Instruments Act, 1881 (the Act)
to follow and comply with the mandate of Section 143 of the said Act
read with Sections 261 to 265 of Criminal Procedure Code, 1973
(Cr.P.C.) for summary trial of such complaints filed or pending
before the said Courts.
b. Issue a writ of mandamus for compliance with the guidelines of this
Hon’ble Court indicating various steps to be followed for summary
trial of complaints under Section 138 of the said Act and report to
this Hon’ble Court.
c. Issue a writ of mandamus, directing the respondents, to adopt
necessary policy and legislative changes to deal with cases relating
to dishonor of cheqeus so that the same are expeditiously disposed
off in accordance with the intent of the Act and the guidelines to be
laid down by this Hon’ble Court.
2. The first petitioner, which is an Association of Persons with 174
banks/financial institutions as its members, is a voluntary association of
banks and functions as think tank for banks in the matters of concern for
the whole banking industry. The Petitioners submit that the issue raised
in this case is of considerable national importance owing to the reason
that in the era of globalization and rapid technological developments,
financial trust and commercial interest have to be restored.
3. The Petitioners submit that the banking industry has been put to a
considerable disadvantage due to the delay in disposing of the cases
relating to Negotiable Instruments Act. The Petitioner banks being
custodian of public funds find it difficult to expeditiously recover huge
amount of public fund which are blocked in cases pending under Section 138
of the Negotiable Instruments Act, 1881. Petitioners submit that, in
spite of the fact, Chapter XIV has been introduced in the Negotiable
Instruments Act by Section 4 of the Banking, Public Financial Institutions
and Negotiable Instruments Laws (Amendment) Act, 1988, to enhance the
acceptability of cheques in settlement of liability by making the drawer
liable for penalties in case of bouncing of cheques due to insufficiency of
funds, the desired object of the Amendment Act has not achieved.
4. Legislature has noticed that the introduction of Sections 138 to 142
of the Act has not achieved desired result for dealing with dishonoured
cheques, hence, it inserted new Sections 143 to 147 in the Negotiable
Instruments Act vide Negotiable Instruments (Amendment and Miscellaneous
Provisions) Act, 2002 for speedy disposal of cases relating to dishonour of
cheques through summary trial as well as making the offence compoundable.
But, no uniform practice is seen followed by the various Magistrate Courts
in the country, as a result of which, the object and purpose for which the
amendments were incorporated, have not been achieved.
5. Cheque, though acknowledged as a bill of exchange under the
Negotiable Instruments Act and readily accepted in lieu of payment of money
and is negotiable, the fact remains that the cheque as a negotiable
instrument started losing its credibility by not being honoured on
presentation. Chapter XVII was introduced, as already indicated, so as to
enhance the acceptability of cheques in settlement of liabilities. The
Statement of Objects and Reasons appended with the Bill explaining the
provisions of the new Chapter reads as follows :-
“This clause [Clause (4) of the Bill] inserts a new Chapter XVII in
the Negotiable Instruments Act, 1881. The provisions contained in the
new Chapter provide that where any cheque drawn by a person for the
discharge of any liability is returned by the bank unpaid for the
reason of the insufficiency of the amount of money standing to the
credit of the account on which the cheque was drawn or for the reason
that it exceeds the arrangements made by the drawer of the cheque with
the bankers for that account, the drawer of such cheque shall be
deemed to have committed an offence. In that case, the drawer, without
prejudice to the other provisions of the said Act, shall be punishable
with imprisonment for a term which may extend to one year, or with
fine which may extend to twice the amount of the cheque, or with both.
The provisions have also been made that to constitute the said
offence:
(a) such cheque should have been presented to the bank within a period
of six months of the date of its drawal or within the period of its
validity, whichever is earlier; and
(b) the payee or holder in due course of such cheque should have made
a demand for the payment of the said amount of money by giving a
notice, in writing, to the drawer of the cheque within fifteen days of
the receipt of the information by him from the bank regarding the
return of the cheque unpaid; and
(c) the drawer of such cheque should have failed to make the payment
of the said amount of money to the payee or the holder in due course
of the cheque within fifteen days of the receipt of the said notice.
It has also been provided that it shall be presumed, unless the
contrary is proved, that the holder of such cheque received the cheque
in the discharge of a liability. Defences which may or may not be
allowed in any prosecution for such offence have also been provided to
make the provisions effective. Usual provision relating to offences by
companies has also been included in the said new Chapter. In order to
ensure that genuine and honest bank customers are not harassed or put
to inconvenience, sufficient safeguards have also been provided in the
proposed new Chapter. Such safeguards are:
(a) that no court shall take cognizance of such offence except on a
complaint, in writing, made by the payee or the holder in due course
of the cheque;
(b) that such complaint is made within one month of the date on which
the cause of action arises; and
(c) that no court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate or a Judicial Magistrate of the First Class shall
try any such offence.”
6. The objectives of the proceedings of Section 138 of the Act are that
the cheques should not be used by persons as a tool of dishonesty and when
cheque is issued by a person, it must be honoured and if it is not
honoured, the person is given an opportunity to pay the cheque amount by
issuance of a notice and if he still does not pay, he must face the
criminal trial and consequences. Section 138 of the Negotiable Instruments
Act, 1881, is given below for easy reference :-
“138. Dishonour of cheque for insufficiency, etc., of funds in the
account. - Where any cheque drawn by a person on an account maintained
by him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with
that bank, such person shall be deemed to have committed an offence
and shall, without prejudice to any other provision of this Act, be
punished with imprisonment for a term which may extend to one year, or
with fine which may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case
may be, makes a demand for the payment of the said amount of money by
giving a notice, in writing, to the drawer of the cheque, within
fifteen days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the
said notice.
Explanation.- For the purposes of this section, "debt or other
liability" means a legally enforceable debt or other liability.”
7. This Court in Electronics Trade & Technology Development Corporation
Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P)
Ltd. and Another (1996) 2 SCC 739, held as follows:
“6.…..The object of bringing Section 138 on statute appears to be to
inculcate faith in the efficacy of banking operations and credibility
in transacting business on negotiable instruments. Despite civil
remedy, Section 138 intended to prevent dishonesty on the part of the
drawer of negotiable instrument to draw a cheque without sufficient
funds in his account maintained by him in a book and induce the payee
or holder in due course to act upon it. Section 138 draws presumption
that one commits the offence if he issues the cheque dishonestly. It
is seen that once the cueque has been drawn and issued to the payee
and the payee has presented the cheque and thereafter, if any
instructions are issued to the bank for non-payment and the cheque is
returned to the payee with such an endorsement, it amounts to
dishonour of cheque and it comes within the meaning of Section 138….”
8. In Goa Plast (P) Ltd. v. Chico Ursula D’Souza (2004) 2 SCC 235, this
Court, while dealing with the objects and ingredients of Sections 138 and
139 of the Act, observed as follows :-
“The object and the ingredients under the provisions, in particular,
Sections 138 and 139 of the Act cannot be ignored. Proper and smooth
functioning of all business transactions, particularly, of cheques as
instruments, primarily depends upon the integrity and honesty of the
parties. In our country, in a large number of commercial transactions,
it was noted that the cheques were issued even merely as a device not
only to stall but even to defraud the creditors. The sanctity and
credibility of issuance of cheques in commercial transactions was
eroded to a large extent. Undoubtedly, dishonour of a cheque by the
bank causes incalculable loss, injury and inconvenience to the payee
and the entire credibility of the business transactions within and
outside the country suffers a serious setback. Parliament, in order to
restore the credibility of cheques as a trustworthy substitute for
cash payment enacted the aforesaid provisions. The remedy available in
a civil court is a long-drawn matter and an unscrupulous drawer
normally takes various pleas to defeat the genuine claim of the
payee.”
9. We have indicated, Sections 138 to 142 of the Act were found to be
deficient in dealing with the dishonoured cheques. In the said
circumstances, the legislature inserted new Sections 143 to 147 by the
Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002,
which is brought into force w.e.f. 6th February, 2003. The object and
reasons for the said Amendment Act are of some importance and are given
below :-
“1. The Negotiable Instruments Act, 1881 was amended by the Banking,
Public Financial Institutions and Negotiable Instruments Laws
(Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for
penalties in case of dishonour of cheques due to insufficiency of
funds in the account of the drawer of the cheque. These provisions
were incorporated with a view to encourage the culture of use of
cheques and enhancing the credibility of the instrument. The existing
provisions in the Negotiable Instruments Act,1881, namely, sections
138 to 142 in Chapter XVII have been found deficient in dealing with
dishonour of cheques. Not only the punishment provided in the Act has
proved to be inadequate, the procedure prescribed for the Courts to
deal with such matters has been found to be cumbersome. The Courts are
unable to dispose of such cases expeditiously in a time bound manner
in view of the procedure contained in the Act.
2. A large number of cases are reported to be pending under sections
138 to 142 of the Negotiable Instruments Act in various courts in the
country. Keeping in view the large number of complaints under the said
Act pending in various courts, a Working Group was constituted to
review section 138 of the Negotiable Instruments Act, 1881 and make
recommendations as to what changes were needed to effectively achieve
the purpose of that section.
3. The recommendations of the Working Group along with other
representations from various institutions and organisations were
examined by the Government in consultation with the Reserve Bank of
India and other legal experts, and a Bill, namely, the Negotiable
Instruments (Amendment) Bill, 2001 was introduced in the Lok Sabha on
24th July, 2001. The Bill was referred to Standing Committee on
Finance which made certain recommendations in its report submitted to
Lok Sabha in November, 2001.
4. 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.
5. The proposed amendments in the Act are aimed at early disposal of
cases relating to dishonour of cheques, enhancing punishment for
offenders, introducing electronic image of a truncated cheque and a
cheque in the electronic form as well as exempting an official nominee
director from prosecution under the Negotiable Instruments Act,1881.
6. The Bill seeks to achieve the above objects.”
10. Section 143 of the Act introduced by 2002 Amendment reads as follows
:-
| | | |
| |“143. Power of Court to try cases summarily.- | |
| | | |
| |(1) Notwithstanding anything contained in the Code of | |
| |Criminal Procedure, 1973, all offences under this Chapter | |
| |shall be tried by a Judicial Magistrate of the first class or| |
| |by a Metropolitan Magistrate and the provisions of Sections | |
| |262 to 265 (both inclusive) of the said Code shall, as far as| |
| |may be, apply to such trials: | |
| | | |
| |Provided that in the case of any conviction in a summary | |
| |trial under this section, it shall be lawful for the | |
| |Magistrate to pass a sentence of imprisonment for a term not | |
| |exceeding one year and an amount of fine exceeding five | |
| |thousand rupees: | |
| | | |
| |Provided further that when at the commencement of, or in the | |
| |course of, a summary trial under this section, it appears to | |
| |the Magistrate 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, the Magistrate shall | |
| |after hearing the parties, record an order to that effect and| |
| |thereafter recall any witness who may have been examined and | |
| |proceed to hear or rehear the case in the manner provided by | |
| |the said Code. | |
| | | |
| |(2) The trial of a case under this section shall, so far as | |
| |practicable, consistently with the interests of justice, be | |
| |continued from day to day until its conclusion, unless the | |
| |Court finds the adjournment of the trial beyond the following| |
| |day to be necessary for reasons to be recorded in writing. | |
| | | |
| |(3) Every trial under this section shall be conducted as | |
| |expeditiously as possible and an endeavour shall be made to | |
| |conclude the trial within six months from the date of filing | |
| |of the complaint.” | |
11. Section 145 of the Act deals with the evidence on affidavit and reads
as follows :
“145. Evidence on affidavit.
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, (2 of 1974.) the evidence of the complainant may be
given by him on affidavit and may, subject to all just exceptions, be
read in evidence in any enquiry, trial or other proceeding under the
said Code.
(2) The Court may, if it thinks fit, and shall, on the application of
the prosecution or the accused, summon and examine any person giving
evidence on affidavit as to the facts contained therein.”
12. The scope of Section 145 came up for consideration before this Court
in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83,
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, unless there was just and reasonable ground to refuse such
permission.
13. This Court while examining the scope of Section 145 in Radhey Shyam
Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, held as follows :-
“If an affidavit in terms of the provisions of Section 145 of the Act
is to be considered to be an evidence, it is difficult to comprehend
as to why the court will ask the deponent of the said affidavit to
examine himself with regard to the contents thereof once over again.
He may be cross-examined and upon completion of his evidence, he may
be re-examined. Thus, the words “examine any person giving evidence on
affidavit as to the facts contained therein, in the event, the
deponent is summoned by the court in terms of sub-section (2) of
Section 145 of the Act”, in our opinion, would mean for the purpose of
cross-examination. The provision seeks to attend a salutary purpose.”
14. Considerable time is usually spent for recording the statement of the
complainant. The question is whether the Court can dispense with the
appearance of the complainant, instead, to take steps to accept the
affidavit of the complainant and treat the same as examination-in-chief.
Section 145(1) gives complete freedom to the complainant either to give his
evidence by way of affidavit or by way of oral evidence. The Court has to
accept the same even if it is given by way of an affidavit. Second part of
Section 145(1) provides that the complainant’s statement on affidavit may,
subject to all just exceptions, be read in evidence in any inquiry, trial
or other proceedings. Section 145 is a rule of procedure which lays down
the manner in which the evidence of the complainant may be recorded and
once the Court issues summons and the presence of the accused is secured,
an option be given to the accused whether, at that stage, he would be
willing to pay the amount due along with reasonable interest and if the
accused is not willing to pay, Court may fix up the case at an early date
and ensure day-to-day trial.
15. Section 143 empowers the Court to try cases for dishonour of cheques
summarily in accordance with the provisions of Section 262 to 265 of the
Code of Criminal Procedure, 1973. The relevant provisions being Sections
262 to 264 are extracted hereinbelow for easy reference :
“262. Procedure for summary trials.
(1) In trials under this Chapter, the procedure specified in this Code
for the trial of summons- ease shall be followed except as hereinafter
mentioned.
(2) No sentence of imprisonment for a term exceeding three months
shall be passed in the case of any conviction under this Chapter.
263.Record in summary trials.-
In every case tried summarily, the Magistrate shall enter, in such
form as the State Government may direct, the following particulars,
namely:-
(a) the serial number of the case:
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant (if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in
cases coming under clause (ii), clause (iii) or clause (iv) of sub-
section (1) of section 260, the value of the property in respect of
which the offence has been committed;
(g) the plea of the accused and his examination (if any);
(h) the finding;
(i) the sentence or other final order
(j) the date on which proceedings terminated.
264. Judgment in cases tried summarily. –
In every case tried summarily in which the accused does not plead
guilty, the Magistrate shall record the substance of the evidence and
a judgment containing a brief statement of the reasons for the
finding.”
16. 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 moto 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.
17. Procedure for summary case has itself been explained by this Court in
Nitinbhai Saevantilal Shah and another v. Manubhai Manjibhai Panchal and
another (2011) 9 SCC 638, wherein this Court held as under :
“12. Provision for summary trials is made in Chapter XXI of the Code.
Section 260 of the Code confers power upon any Chief Judicial
Magistrate or any Metropolitan Magistrate or any Magistrate of the
First Class specially empowered in this behalf by the High Court to
try in a summary way all or any of the offences enumerated therein.
Section 262 lays down the procedure for summary trial and sub-section
(1) thereof inter alia prescribes that in summary trials the procedure
specified in the Code for the trial of summons case shall be followed
subject to the condition that no sentence of imprisonment for a term
exceeding three months is passed in case of any conviction under the
chapter.
13. The manner in which the record in summary trials is to be
maintained is provided in Section 263 of the Code. Section 264
mentions that in every case tried summarily in which the accused does
not plead guilty, the Magistrate shall record the substance of the
evidence and a judgment containing a brief statement of the reasons
for the finding. Thus, the Magistrate is not expected to record full
evidence which he would have been, otherwise required to record in a
regular trial and his judgment should also contain a brief statement
of the reasons for the finding and not elaborate reasons which
otherwise he would have been required to record in regular trials.”
18. Amendment Act, 2002 has to be given effect to in its letter and
spirit. Section 143 of the Act, as already indicated, has been inserted by
the said Act stipulating that notwithstanding anything contained in the
Code of Criminal Procedure, all offences contained in Chapter XVII of the
Negotiable Instruments Act dealing with dishonour of cheques for
insufficiency of funds, etc. shall be tried by a Judicial Magistrate and
the provisions of Sections 262 to 265 Cr.P.C. prescribing procedure for
summary trials, shall apply to such trials and it shall be lawful for a
Magistrate to pass sentence of imprisonment for a term not exceeding one
year and an amount of fine exceeding Rs.5,000/- and it is further provided
that in the course of a summary trial, if it appears to the Magistrate that
the nature of the case requires passing of the sentence of imprisonment
exceeding one year, the Magistrate, after hearing the parties, record an
order to that effect and thereafter recall any witness and proceed to hear
or rehear the case in the manner provided in Criminal Procedure Code.
19. This Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC
663, laid down certain guidelines while interpreting Sections 138 and 147
of the Negotiable Instruments Act to encourage litigants in cheque
dishonour cases to opt for compounding during early stages of litigation to
ease choking of criminal justice system for graded scheme of imposing costs
on parties who unduly delay compounding of offence, and for controlling of
filing of complaints in multiple jurisdictions relatable to same
transaction, which have also to be borne in mind by the Magistrate while
dealing with cases under Section 138 of the Negotiable Instruments Act.
20. We notice, considering all those aspects, few High Courts of the
country have laid down certain procedures for speedy disposal of cases
under Section 138 of the Negotiable Instruments Act. Reference, in this
connection, may be made to the judgments of the Bombay High Court in KSL
and Industries Ltd. v. Mannalal Khandelwal and The State of Maharashtra
through the Office of the Government Pleader (2005) CriLJ 1201, Indo
International Ltd. and another v. State of Maharashtra and another (2005)
44 Civil CC (Bombay) and Harischandra Biyani v. Stock Holding Corporation
of India Ltd. (2006) 4 MhLJ 381, the judgment of the Calcutta High Court in
Magma Leasing Ltd. v. State of West Bengal and others (2007) 3 CHN 574 and
the judgment of the Delhi High Court in Rajesh Agarwal v. State and another
(2010) ILR 6 Delhi 610.
21. Many of the directions given by the various High Courts, in our view,
are worthy of emulation by the Criminal Courts all over the country dealing
with cases under Section 138 of the Negotiable Instruments Act, for which
the following directions are being given :-
DIRECTIONS:
1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day
when the complaint under Section 138 of the Act is presented, shall
scrutinize the complaint 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) MM/JM 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.
4) Court should direct the accused, when he appears to furnish a
bail bond, to ensure his appearance during trial and ask him to
take notice under Section 251Cr.P.C. to enable him to enter his
plea of defence and fix the case for defence evidence, unless an
application is made by the accused under Section 145(2) for re-
calling a witness for cross-examination.
(5) The Court concerned must ensure that examination-in-chief, cross-
examination and re-examination of the complainant must be conducted
within three months of assigning the case. The Court has option
of accepting affidavits of the witnesses, instead of examining them
in Court. Witnesses to the complaint and accused must be available
for cross-examination as and when there is direction to this effect
by the Court.
22. We, therefore, direct all the Criminal Courts in the country dealing
with Section 138 cases to follow the above-mentioned procedures for speedy
and expeditious disposal of cases falling under Section 138 of the
Negotiable Instruments Act.
23. Writ Petition is, accordingly, disposed of, as above.
…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(Vikramajit Sen)
New Delhi,
April 21, 2014.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.18 OF 2013
Indian Bank Association and others … Petitioners
Versus
Union of India and others … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. This Writ Petition, under Article 32 of the Constitution of India,
has been preferred by the Indian Banks’ Association (IBA) along with Punjab
National Bank and another, seeking the following reliefs :-
a. Laying down appropriate guidelines/directions to be followed by all
Courts within the territory of India competent to try a complaint
under Section 138 of the Negotiable Instruments Act, 1881 (the Act)
to follow and comply with the mandate of Section 143 of the said Act
read with Sections 261 to 265 of Criminal Procedure Code, 1973
(Cr.P.C.) for summary trial of such complaints filed or pending
before the said Courts.
b. Issue a writ of mandamus for compliance with the guidelines of this
Hon’ble Court indicating various steps to be followed for summary
trial of complaints under Section 138 of the said Act and report to
this Hon’ble Court.
c. Issue a writ of mandamus, directing the respondents, to adopt
necessary policy and legislative changes to deal with cases relating
to dishonor of cheqeus so that the same are expeditiously disposed
off in accordance with the intent of the Act and the guidelines to be
laid down by this Hon’ble Court.
2. The first petitioner, which is an Association of Persons with 174
banks/financial institutions as its members, is a voluntary association of
banks and functions as think tank for banks in the matters of concern for
the whole banking industry. The Petitioners submit that the issue raised
in this case is of considerable national importance owing to the reason
that in the era of globalization and rapid technological developments,
financial trust and commercial interest have to be restored.
3. The Petitioners submit that the banking industry has been put to a
considerable disadvantage due to the delay in disposing of the cases
relating to Negotiable Instruments Act. The Petitioner banks being
custodian of public funds find it difficult to expeditiously recover huge
amount of public fund which are blocked in cases pending under Section 138
of the Negotiable Instruments Act, 1881. Petitioners submit that, in
spite of the fact, Chapter XIV has been introduced in the Negotiable
Instruments Act by Section 4 of the Banking, Public Financial Institutions
and Negotiable Instruments Laws (Amendment) Act, 1988, to enhance the
acceptability of cheques in settlement of liability by making the drawer
liable for penalties in case of bouncing of cheques due to insufficiency of
funds, the desired object of the Amendment Act has not achieved.
4. Legislature has noticed that the introduction of Sections 138 to 142
of the Act has not achieved desired result for dealing with dishonoured
cheques, hence, it inserted new Sections 143 to 147 in the Negotiable
Instruments Act vide Negotiable Instruments (Amendment and Miscellaneous
Provisions) Act, 2002 for speedy disposal of cases relating to dishonour of
cheques through summary trial as well as making the offence compoundable.
But, no uniform practice is seen followed by the various Magistrate Courts
in the country, as a result of which, the object and purpose for which the
amendments were incorporated, have not been achieved.
5. Cheque, though acknowledged as a bill of exchange under the
Negotiable Instruments Act and readily accepted in lieu of payment of money
and is negotiable, the fact remains that the cheque as a negotiable
instrument started losing its credibility by not being honoured on
presentation. Chapter XVII was introduced, as already indicated, so as to
enhance the acceptability of cheques in settlement of liabilities. The
Statement of Objects and Reasons appended with the Bill explaining the
provisions of the new Chapter reads as follows :-
“This clause [Clause (4) of the Bill] inserts a new Chapter XVII in
the Negotiable Instruments Act, 1881. The provisions contained in the
new Chapter provide that where any cheque drawn by a person for the
discharge of any liability is returned by the bank unpaid for the
reason of the insufficiency of the amount of money standing to the
credit of the account on which the cheque was drawn or for the reason
that it exceeds the arrangements made by the drawer of the cheque with
the bankers for that account, the drawer of such cheque shall be
deemed to have committed an offence. In that case, the drawer, without
prejudice to the other provisions of the said Act, shall be punishable
with imprisonment for a term which may extend to one year, or with
fine which may extend to twice the amount of the cheque, or with both.
The provisions have also been made that to constitute the said
offence:
(a) such cheque should have been presented to the bank within a period
of six months of the date of its drawal or within the period of its
validity, whichever is earlier; and
(b) the payee or holder in due course of such cheque should have made
a demand for the payment of the said amount of money by giving a
notice, in writing, to the drawer of the cheque within fifteen days of
the receipt of the information by him from the bank regarding the
return of the cheque unpaid; and
(c) the drawer of such cheque should have failed to make the payment
of the said amount of money to the payee or the holder in due course
of the cheque within fifteen days of the receipt of the said notice.
It has also been provided that it shall be presumed, unless the
contrary is proved, that the holder of such cheque received the cheque
in the discharge of a liability. Defences which may or may not be
allowed in any prosecution for such offence have also been provided to
make the provisions effective. Usual provision relating to offences by
companies has also been included in the said new Chapter. In order to
ensure that genuine and honest bank customers are not harassed or put
to inconvenience, sufficient safeguards have also been provided in the
proposed new Chapter. Such safeguards are:
(a) that no court shall take cognizance of such offence except on a
complaint, in writing, made by the payee or the holder in due course
of the cheque;
(b) that such complaint is made within one month of the date on which
the cause of action arises; and
(c) that no court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate or a Judicial Magistrate of the First Class shall
try any such offence.”
6. The objectives of the proceedings of Section 138 of the Act are that
the cheques should not be used by persons as a tool of dishonesty and when
cheque is issued by a person, it must be honoured and if it is not
honoured, the person is given an opportunity to pay the cheque amount by
issuance of a notice and if he still does not pay, he must face the
criminal trial and consequences. Section 138 of the Negotiable Instruments
Act, 1881, is given below for easy reference :-
“138. Dishonour of cheque for insufficiency, etc., of funds in the
account. - Where any cheque drawn by a person on an account maintained
by him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with
that bank, such person shall be deemed to have committed an offence
and shall, without prejudice to any other provision of this Act, be
punished with imprisonment for a term which may extend to one year, or
with fine which may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case
may be, makes a demand for the payment of the said amount of money by
giving a notice, in writing, to the drawer of the cheque, within
fifteen days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the
said notice.
Explanation.- For the purposes of this section, "debt or other
liability" means a legally enforceable debt or other liability.”
7. This Court in Electronics Trade & Technology Development Corporation
Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P)
Ltd. and Another (1996) 2 SCC 739, held as follows:
“6.…..The object of bringing Section 138 on statute appears to be to
inculcate faith in the efficacy of banking operations and credibility
in transacting business on negotiable instruments. Despite civil
remedy, Section 138 intended to prevent dishonesty on the part of the
drawer of negotiable instrument to draw a cheque without sufficient
funds in his account maintained by him in a book and induce the payee
or holder in due course to act upon it. Section 138 draws presumption
that one commits the offence if he issues the cheque dishonestly. It
is seen that once the cueque has been drawn and issued to the payee
and the payee has presented the cheque and thereafter, if any
instructions are issued to the bank for non-payment and the cheque is
returned to the payee with such an endorsement, it amounts to
dishonour of cheque and it comes within the meaning of Section 138….”
8. In Goa Plast (P) Ltd. v. Chico Ursula D’Souza (2004) 2 SCC 235, this
Court, while dealing with the objects and ingredients of Sections 138 and
139 of the Act, observed as follows :-
“The object and the ingredients under the provisions, in particular,
Sections 138 and 139 of the Act cannot be ignored. Proper and smooth
functioning of all business transactions, particularly, of cheques as
instruments, primarily depends upon the integrity and honesty of the
parties. In our country, in a large number of commercial transactions,
it was noted that the cheques were issued even merely as a device not
only to stall but even to defraud the creditors. The sanctity and
credibility of issuance of cheques in commercial transactions was
eroded to a large extent. Undoubtedly, dishonour of a cheque by the
bank causes incalculable loss, injury and inconvenience to the payee
and the entire credibility of the business transactions within and
outside the country suffers a serious setback. Parliament, in order to
restore the credibility of cheques as a trustworthy substitute for
cash payment enacted the aforesaid provisions. The remedy available in
a civil court is a long-drawn matter and an unscrupulous drawer
normally takes various pleas to defeat the genuine claim of the
payee.”
9. We have indicated, Sections 138 to 142 of the Act were found to be
deficient in dealing with the dishonoured cheques. In the said
circumstances, the legislature inserted new Sections 143 to 147 by the
Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002,
which is brought into force w.e.f. 6th February, 2003. The object and
reasons for the said Amendment Act are of some importance and are given
below :-
“1. The Negotiable Instruments Act, 1881 was amended by the Banking,
Public Financial Institutions and Negotiable Instruments Laws
(Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for
penalties in case of dishonour of cheques due to insufficiency of
funds in the account of the drawer of the cheque. These provisions
were incorporated with a view to encourage the culture of use of
cheques and enhancing the credibility of the instrument. The existing
provisions in the Negotiable Instruments Act,1881, namely, sections
138 to 142 in Chapter XVII have been found deficient in dealing with
dishonour of cheques. Not only the punishment provided in the Act has
proved to be inadequate, the procedure prescribed for the Courts to
deal with such matters has been found to be cumbersome. The Courts are
unable to dispose of such cases expeditiously in a time bound manner
in view of the procedure contained in the Act.
2. A large number of cases are reported to be pending under sections
138 to 142 of the Negotiable Instruments Act in various courts in the
country. Keeping in view the large number of complaints under the said
Act pending in various courts, a Working Group was constituted to
review section 138 of the Negotiable Instruments Act, 1881 and make
recommendations as to what changes were needed to effectively achieve
the purpose of that section.
3. The recommendations of the Working Group along with other
representations from various institutions and organisations were
examined by the Government in consultation with the Reserve Bank of
India and other legal experts, and a Bill, namely, the Negotiable
Instruments (Amendment) Bill, 2001 was introduced in the Lok Sabha on
24th July, 2001. The Bill was referred to Standing Committee on
Finance which made certain recommendations in its report submitted to
Lok Sabha in November, 2001.
4. 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.
5. The proposed amendments in the Act are aimed at early disposal of
cases relating to dishonour of cheques, enhancing punishment for
offenders, introducing electronic image of a truncated cheque and a
cheque in the electronic form as well as exempting an official nominee
director from prosecution under the Negotiable Instruments Act,1881.
6. The Bill seeks to achieve the above objects.”
10. Section 143 of the Act introduced by 2002 Amendment reads as follows
:-
| | | |
| |“143. Power of Court to try cases summarily.- | |
| | | |
| |(1) Notwithstanding anything contained in the Code of | |
| |Criminal Procedure, 1973, all offences under this Chapter | |
| |shall be tried by a Judicial Magistrate of the first class or| |
| |by a Metropolitan Magistrate and the provisions of Sections | |
| |262 to 265 (both inclusive) of the said Code shall, as far as| |
| |may be, apply to such trials: | |
| | | |
| |Provided that in the case of any conviction in a summary | |
| |trial under this section, it shall be lawful for the | |
| |Magistrate to pass a sentence of imprisonment for a term not | |
| |exceeding one year and an amount of fine exceeding five | |
| |thousand rupees: | |
| | | |
| |Provided further that when at the commencement of, or in the | |
| |course of, a summary trial under this section, it appears to | |
| |the Magistrate 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, the Magistrate shall | |
| |after hearing the parties, record an order to that effect and| |
| |thereafter recall any witness who may have been examined and | |
| |proceed to hear or rehear the case in the manner provided by | |
| |the said Code. | |
| | | |
| |(2) The trial of a case under this section shall, so far as | |
| |practicable, consistently with the interests of justice, be | |
| |continued from day to day until its conclusion, unless the | |
| |Court finds the adjournment of the trial beyond the following| |
| |day to be necessary for reasons to be recorded in writing. | |
| | | |
| |(3) Every trial under this section shall be conducted as | |
| |expeditiously as possible and an endeavour shall be made to | |
| |conclude the trial within six months from the date of filing | |
| |of the complaint.” | |
11. Section 145 of the Act deals with the evidence on affidavit and reads
as follows :
“145. Evidence on affidavit.
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, (2 of 1974.) the evidence of the complainant may be
given by him on affidavit and may, subject to all just exceptions, be
read in evidence in any enquiry, trial or other proceeding under the
said Code.
(2) The Court may, if it thinks fit, and shall, on the application of
the prosecution or the accused, summon and examine any person giving
evidence on affidavit as to the facts contained therein.”
12. The scope of Section 145 came up for consideration before this Court
in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83,
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, unless there was just and reasonable ground to refuse such
permission.
13. This Court while examining the scope of Section 145 in Radhey Shyam
Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, held as follows :-
“If an affidavit in terms of the provisions of Section 145 of the Act
is to be considered to be an evidence, it is difficult to comprehend
as to why the court will ask the deponent of the said affidavit to
examine himself with regard to the contents thereof once over again.
He may be cross-examined and upon completion of his evidence, he may
be re-examined. Thus, the words “examine any person giving evidence on
affidavit as to the facts contained therein, in the event, the
deponent is summoned by the court in terms of sub-section (2) of
Section 145 of the Act”, in our opinion, would mean for the purpose of
cross-examination. The provision seeks to attend a salutary purpose.”
14. Considerable time is usually spent for recording the statement of the
complainant. The question is whether the Court can dispense with the
appearance of the complainant, instead, to take steps to accept the
affidavit of the complainant and treat the same as examination-in-chief.
Section 145(1) gives complete freedom to the complainant either to give his
evidence by way of affidavit or by way of oral evidence. The Court has to
accept the same even if it is given by way of an affidavit. Second part of
Section 145(1) provides that the complainant’s statement on affidavit may,
subject to all just exceptions, be read in evidence in any inquiry, trial
or other proceedings. Section 145 is a rule of procedure which lays down
the manner in which the evidence of the complainant may be recorded and
once the Court issues summons and the presence of the accused is secured,
an option be given to the accused whether, at that stage, he would be
willing to pay the amount due along with reasonable interest and if the
accused is not willing to pay, Court may fix up the case at an early date
and ensure day-to-day trial.
15. Section 143 empowers the Court to try cases for dishonour of cheques
summarily in accordance with the provisions of Section 262 to 265 of the
Code of Criminal Procedure, 1973. The relevant provisions being Sections
262 to 264 are extracted hereinbelow for easy reference :
“262. Procedure for summary trials.
(1) In trials under this Chapter, the procedure specified in this Code
for the trial of summons- ease shall be followed except as hereinafter
mentioned.
(2) No sentence of imprisonment for a term exceeding three months
shall be passed in the case of any conviction under this Chapter.
263.Record in summary trials.-
In every case tried summarily, the Magistrate shall enter, in such
form as the State Government may direct, the following particulars,
namely:-
(a) the serial number of the case:
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant (if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in
cases coming under clause (ii), clause (iii) or clause (iv) of sub-
section (1) of section 260, the value of the property in respect of
which the offence has been committed;
(g) the plea of the accused and his examination (if any);
(h) the finding;
(i) the sentence or other final order
(j) the date on which proceedings terminated.
264. Judgment in cases tried summarily. –
In every case tried summarily in which the accused does not plead
guilty, the Magistrate shall record the substance of the evidence and
a judgment containing a brief statement of the reasons for the
finding.”
16. 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 moto 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.
17. Procedure for summary case has itself been explained by this Court in
Nitinbhai Saevantilal Shah and another v. Manubhai Manjibhai Panchal and
another (2011) 9 SCC 638, wherein this Court held as under :
“12. Provision for summary trials is made in Chapter XXI of the Code.
Section 260 of the Code confers power upon any Chief Judicial
Magistrate or any Metropolitan Magistrate or any Magistrate of the
First Class specially empowered in this behalf by the High Court to
try in a summary way all or any of the offences enumerated therein.
Section 262 lays down the procedure for summary trial and sub-section
(1) thereof inter alia prescribes that in summary trials the procedure
specified in the Code for the trial of summons case shall be followed
subject to the condition that no sentence of imprisonment for a term
exceeding three months is passed in case of any conviction under the
chapter.
13. The manner in which the record in summary trials is to be
maintained is provided in Section 263 of the Code. Section 264
mentions that in every case tried summarily in which the accused does
not plead guilty, the Magistrate shall record the substance of the
evidence and a judgment containing a brief statement of the reasons
for the finding. Thus, the Magistrate is not expected to record full
evidence which he would have been, otherwise required to record in a
regular trial and his judgment should also contain a brief statement
of the reasons for the finding and not elaborate reasons which
otherwise he would have been required to record in regular trials.”
18. Amendment Act, 2002 has to be given effect to in its letter and
spirit. Section 143 of the Act, as already indicated, has been inserted by
the said Act stipulating that notwithstanding anything contained in the
Code of Criminal Procedure, all offences contained in Chapter XVII of the
Negotiable Instruments Act dealing with dishonour of cheques for
insufficiency of funds, etc. shall be tried by a Judicial Magistrate and
the provisions of Sections 262 to 265 Cr.P.C. prescribing procedure for
summary trials, shall apply to such trials and it shall be lawful for a
Magistrate to pass sentence of imprisonment for a term not exceeding one
year and an amount of fine exceeding Rs.5,000/- and it is further provided
that in the course of a summary trial, if it appears to the Magistrate that
the nature of the case requires passing of the sentence of imprisonment
exceeding one year, the Magistrate, after hearing the parties, record an
order to that effect and thereafter recall any witness and proceed to hear
or rehear the case in the manner provided in Criminal Procedure Code.
19. This Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC
663, laid down certain guidelines while interpreting Sections 138 and 147
of the Negotiable Instruments Act to encourage litigants in cheque
dishonour cases to opt for compounding during early stages of litigation to
ease choking of criminal justice system for graded scheme of imposing costs
on parties who unduly delay compounding of offence, and for controlling of
filing of complaints in multiple jurisdictions relatable to same
transaction, which have also to be borne in mind by the Magistrate while
dealing with cases under Section 138 of the Negotiable Instruments Act.
20. We notice, considering all those aspects, few High Courts of the
country have laid down certain procedures for speedy disposal of cases
under Section 138 of the Negotiable Instruments Act. Reference, in this
connection, may be made to the judgments of the Bombay High Court in KSL
and Industries Ltd. v. Mannalal Khandelwal and The State of Maharashtra
through the Office of the Government Pleader (2005) CriLJ 1201, Indo
International Ltd. and another v. State of Maharashtra and another (2005)
44 Civil CC (Bombay) and Harischandra Biyani v. Stock Holding Corporation
of India Ltd. (2006) 4 MhLJ 381, the judgment of the Calcutta High Court in
Magma Leasing Ltd. v. State of West Bengal and others (2007) 3 CHN 574 and
the judgment of the Delhi High Court in Rajesh Agarwal v. State and another
(2010) ILR 6 Delhi 610.
21. Many of the directions given by the various High Courts, in our view,
are worthy of emulation by the Criminal Courts all over the country dealing
with cases under Section 138 of the Negotiable Instruments Act, for which
the following directions are being given :-
DIRECTIONS:
1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day
when the complaint under Section 138 of the Act is presented, shall
scrutinize the complaint 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) MM/JM 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.
4) Court should direct the accused, when he appears to furnish a
bail bond, to ensure his appearance during trial and ask him to
take notice under Section 251Cr.P.C. to enable him to enter his
plea of defence and fix the case for defence evidence, unless an
application is made by the accused under Section 145(2) for re-
calling a witness for cross-examination.
(5) The Court concerned must ensure that examination-in-chief, cross-
examination and re-examination of the complainant must be conducted
within three months of assigning the case. The Court has option
of accepting affidavits of the witnesses, instead of examining them
in Court. Witnesses to the complaint and accused must be available
for cross-examination as and when there is direction to this effect
by the Court.
22. We, therefore, direct all the Criminal Courts in the country dealing
with Section 138 cases to follow the above-mentioned procedures for speedy
and expeditious disposal of cases falling under Section 138 of the
Negotiable Instruments Act.
23. Writ Petition is, accordingly, disposed of, as above.
…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(Vikramajit Sen)
New Delhi,
April 21, 2014.
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