Suo Motu Writ Petition (Crl.) No. 2 of 2020]
1.
Special Leave Petition (Criminal) No. 5464 of 2016 pertains to dishonour
of two cheques on 27.01.2005 for an amount of Rs.1,70,000/-. The
dispute has remained pending for the past 16 years. Concerned with the
large number of cases filed under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter 'the Act') pending at various levels,
a Division Bench of this Court consisting of two of us (the Chief
Justice of India and L. Nageswara Rao, J.) decided to examine the
reasons for the delay in disposal of these cases.
The
Registry was directed to register a Suo Motu Writ Petition (Criminal)
captioned as "Expeditious Trial of Cases under Section 138 of N.I. Act
1881". Mr. Sidharth Luthra, learned Senior Counsel was appointed as
Amicus Curiae and Mr. K. Parameshwar, learned Counsel was requested to
assist him. Notices were issued to the Union of India, Registrar
Generals of the High Courts, Director Generals of Police of the States
and Union Territories, Member Secretary of the National Legal Services
Authority, Reserve Bank of India and Indian Banks' Association, Mumbai
as the representative of banking institutions.
2.
The learned Amici Curiae submitted a preliminary report on 11.10.2020
which was circulated to all the Respondents. On 19.01.2021, the learned
Amici Curiae informed this Court that only 14 out of 25 High Courts had
submitted their responses to the preliminary report. The Reserve Bank of
India had also filed its suggestions. Seven Directors General of Police
had filed their affidavits putting forward their views to the
preliminary report. The parties who had not filed their responses were
granted further time and the matter was listed on 24.02.2021 for final
disposal.
During
the course of the hearing, it was felt by a Bench of three Judges,
consisting of the Chief Justice of India, L. Nageswara Rao, J. and S.
Ravindra Bhat, J. that the matter had to be considered by a larger bench
in view of the important issues that arose for determination before
this Court. The reference of the matter to a larger bench was also
necessitated due to the submission made by the learned Amici Curiae that
certain judicial pronouncements of this Court needed clarification. We
have heard learned Amici Curiae, Advocates for some States, the learned
Solicitor General of India, Mr. Vikramjit Banerjee, learned Additional
Solicitor General of India, Mr. Ramesh Babu, Advocate for the Reserve
Bank of India and Dr. Lalit Bhasin, Advocate for the Indian Banks'
Association.
3.
Chapter XVII inserted in the Act, containing Sections 138 to 142, came
into force on 01.04.1989. 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. Section 139 dealt with the presumption in favour of the
holder that the cheque received was for the discharge, in whole or in
part, of any debt or other liability.
The
defence which may not be allowed in a prosecution under Section 138 of
the Act is governed by Section 140. Section 141 pertains to offences by
companies. Section 142 lays down conditions under which cognizance of
offences may be taken under Section 138. Over the years, courts were
inundated with complaints filed under Section 138 of the Act which could
not be decided within a reasonable period and remained pending for a
number of years.
4.
This gargantuan pendency of complaints filed under Section 138 of the
Act has had an adverse effect in disposal of other criminal cases. There
was an imminent need for remedying the situation which 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, 'the Code').
Sub-section
(3) of Section 143 stipulates that an endeavour be made to conclude the
trial within six months from the date of filing of the complaint.
Section 144 deals with the mode of service of summons. Section 145
postulates that the evidence of the complainant given by him on
affidavit may be read as evidence in any inquiry, trial or other
proceeding under the Code.
Bank's
slip or memo denoting that the cheque has been dishonoured is presumed
to be prima facie evidence of the fact of dishonour of the cheque,
according to Section 146. Section 147 makes offences punishable under
the Act compoundable. The punishment prescribed under the Act was
enhanced from one year to two years, along with other amendments made to
Sections 138 to 142 with which we are not concerned in this case.
5.
The situation has not improved as courts continue to struggle with the
humongous pendency of complaints under Section 138 of the Act. The
preliminary report submitted by the learned Amici Curiae shows that as
on 31.12.2019, the total number of criminal cases pending was 2.31
crores, out of which 35.16 lakh pertained to Section 138 of the Act. The
reasons for the backlog of cases, according to the learned Amici
Curiae, is that while there is a steady increase in the institution of
complaints every year, the rate of disposal does not match the rate of
institution of complaints. Delay in disposal of the complaints under
Section 138 of the Act has been due to reasons which we shall deal with
in this order.
6.
The learned Amici Curiae identified seven major issues from the
responses filed by the State Governments and Union Territories which 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
7.
Service of summons on the accused in a complaint filed under Section 138
of the Act has been one of the main reasons for the delay in disposal
of the complaints. After examining the responses of the various State
Governments and Union Territories, several suggestions have been given
by the learned Amici Curiae for speeding up the service of summons. Some
of the suggestions given by him pertain to dishonour slips issued by
the bank under Section 146 of the Act, disclosing the current mobile
number, email address and postal address of the drawer of the cheque,
the details of the drawer being given on the cheque leaf, creation of a
Nodal Agency for electronic service of summons and generation of a
unique number from the dishonour memo.
The
Union of India and the Reserve Bank of India were directed to submit
their responses to the suggestions made by the learned Amici Curiae on
these aspects. After hearing the learned Solicitor General of India and
Mr. Ramesh Babu, learned counsel for the Reserve Bank of India, on
10.03.2021, it was considered appropriate by this Court to form 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
recommendations made by the learned Amici Curiae relating to attachment
of bank accounts to the extent of the cheque amount, pre-summons
mediation and all other issues which are part of the preliminary note
and the written submissions of the learned Amici Curiae shall be
considered by the aforementioned Committee, in addition to other related
issues which may arise during such consideration. The Committee is
directed to deliberate on the need for creation of additional courts to
try complaints under Section 138 of the Act.
MECHANICAL CONVERSION OF SUMMARY TRIAL TO SUMMONS TRIAL
8.
The learned Amici Curiae submitted that Section 143 of the Act provides
that Sections 262 to 265 of the Code shall apply for the trial of all
offences under Chapter XVII of the Act. The second proviso empowers the
Magistrate to convert the summary trial to summons trial, if he is of
the opinion that a sentence of imprisonment exceeding one year may have
to be passed or that it is undesirable to try the case summarily, after
recording reasons. The learned Amici Curiae has brought to the notice of
this Court that summary trials are routinely converted to summons
trials in a mechanical manner. The suggestions made by him in his
preliminary note that the High Courts should issue practice directions
to the Trial Courts for recording cogent and sufficient reasons before
converting a summary trial to summons trial have been accepted by the
High Courts.
9.
Section 143 of the Act has been introduced in the year 2002 as a step-in
aid for quick disposal of complaints filed under Section 138 of the
Act. At this stage, it is necessary to refer to Chapter XXI of the Code
which deals with summary trials. In a case tried summarily in which the
accused does not plead guilty, it is sufficient for the Magistrate to
record the substance of the evidence and deliver a judgment, containing a
brief statement of reasons for his findings.
There
is a restriction that the procedure for summary trials under Section
262 is not to be applied for any sentence of imprisonment exceeding
three months. However, Sections 262 to 265 of the Code were made
applicable "as far as may be" for trial of an offence under Chapter XVII
of the Act, notwithstanding anything contained in the Code. It is only
in a case where the Magistrate is of the opinion that it may be
necessary to sentence the accused for a term exceeding one year that the
complaint shall be tried as a summons trial.
From
the responses of various High Courts, it is clear that the conversion by
the Trial Courts of complaints under Section 138 from summary trial to
summons trial is being done mechanically without reasons being recorded.
The result of such conversion of complaints under Section 138 from
summary trial to summons trial has been contributing to the delay in
disposal of the cases. Further, the second proviso to Section 143
mandates that the Magistrate has to record an order spelling out the
reasons for such conversion. The object of Section 143 of the Act is
quick disposal of the complaints under Section 138 by following the
procedure prescribed for summary trial under the Code, to the extent
possible.
The
discretion conferred on the Magistrate by the second proviso to Section
143 is to be exercised with due care and caution, after recording
reasons for converting the trial of the complaint from summary trial to
summons trial. Otherwise, the purpose for which Section 143 of the Act
has been introduced would be defeated. We accept the suggestions made by
the learned Amici Curiae in consultation with the High Courts. The High
Courts may issue practice directions to the Magistrates to record
reasons before converting trial of complaints under Section 138 from
summary trial to summons trial in exercise of power under the second
proviso to Section 143 of the Act.
INQUIRY UNDER SECTION 202 OF THE CODE IN RELATION TO SECTION 145 OF THE ACT
10.
Section 202 of the Code confers jurisdiction on the Magistrate to
conduct an inquiry for the purpose of deciding whether sufficient
grounds justifying the issue of process are made out. The amendment to
Section 202 of the Code with effect from 23.06.2006, vide Act 25 of
2005, made it mandatory for the Magistrate to conduct an inquiry before
issue of process, in a case where the accused resides beyond the area of
jurisdiction of the court. (See: Vijay Dhanuka & Ors. v. Najima
Mamtaj & Ors.1, Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr.2
and Birla Corporation Limited v. Adventz Investments and Holdings
Limited & Ors.3).
There
has been a divergence of opinion amongst the High Courts relating to
the applicability of Section 202 in respect of complaints filed under
Section 138 of the Act. Certain cases under Section 138 have been
decided by the High Courts upholding the view that it is mandatory for
the Magistrate to conduct an inquiry, as provided in Section 202 of the
Code, before issuance of process in complaints filed under Section 138.
Contrary views have been expressed in some other cases. It has been held
that merely because the accused is residing outside the jurisdiction of
the court, it is not necessary for the Magistrate to postpone the
issuance of process in each and every case. Further, it has also been
held that not conducting inquiry under Section 202 of the Code would not
vitiate the issuance of process, if requisite satisfaction can be
obtained from materials available on record.
11.
The learned Amici Curiae referred to a judgment of this Court in K.S.
Joseph v. Philips Carbon Black Ltd & Anr.4 where there was a
discussion about the requirement of inquiry under Section 202 of the
Code in relation to complaints filed under Section 138 but the question
of law was left open. In view of the judgments of this Court in Vijay
Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra),
the inquiry to be held by the Magistrate before issuance of summons to
the accused residing outside the jurisdiction of the court cannot be
dispensed with. The learned Amici Curiae recommended that the Magistrate
should come to a conclusion after holding an inquiry that there are
sufficient grounds to proceed against the accused. We are in agreement
with the learned Amici.
12.
Another point that has been brought to our notice relates to the
interpretation of Section 202 (2) which stipulates that the Magistrate
shall take evidence of the witness on oath in an inquiry conducted under
Section 202 (1) for the purpose of issuance of process. Section 145 of
the Act provides that the evidence of the complainant may be given by
him on affidavit, which shall be read in evidence in any inquiry, trial
or other proceeding, notwithstanding anything contained in the Code.
Section 145 (2) of the Act enables the court to summon and examine any
person giving evidence on affidavit as to the facts contained therein,
on an application of the prosecution or the accused.
It is
contended by the learned Amici Curiae that though there is no specific
provision permitting the examination of witnesses on affidavit, Section
145 permits the complainant to be examined by way of an affidavit for
the purpose of inquiry under Section 202. He suggested that Section 202
(2) should be read along with Section 145 and in respect of complaints
under Section 138, the examination of witnesses also should be permitted
on affidavit. Only in exceptional cases, the Magistrate may examine the
witnesses personally. Section 145 of the Act is an exception to Section
202 in respect of examination of the complainant by way of an
affidavit.
There
is no specific provision in relation to examination of the witnesses
also on affidavit in Section 145. It becomes clear that Section 145 had
been inserted in the Act, with effect from the year 2003, with the
laudable object of speeding up trials in complaints filed under Section
138.
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 along with Section 202, we
hold that Section 202 (2) of the Code is inapplicable to complaints
under Section 138 in respect of examination of witnesses on oath. The
evidence of witnesses on behalf of the complainant shall be permitted on
affidavit. If the Magistrate holds an inquiry himself, it is not
compulsory that he should examine witnesses. In suitable cases, the
Magistrate can examine documents for satisfaction as to the sufficiency
of grounds for proceeding under Section 202.
SECTIONS 219 AND 220 OF THE CODE
13.
Section 219 of the Code provides that when a person is accused of more
offences than one, of the same kind, committed within a space of 12
months, he may be tried at one trial for a maximum of three such
offences. If more than one offence is committed by the same person in
one series of acts so committed together as to form the same
transaction, he may be charged with and tried at one trial, according to
Section 220.
In
his preliminary report, the learned Amici Curiae suggested that a
legislative amendment is required to Section 219 of the Code to avoid
multiplicity of proceedings where cheques have been issued for one
purpose. In so far as Section 220 of the Code is concerned, the learned
Amici Curiae submitted that same/similar offences as part of the same
transaction in one series of acts may be the subject matter of one
trial.
It
was argued by the learned Amici Curiae that Section 220 (1) of the Code
is not controlled by Section 219 and even if the offences are more than
three in respect of the same transaction, there can be a joint trial.
Reliance was placed on a judgment of this Court in Balbir v. State of
Haryana & Anr.5 to contend that all offences alleged to have been
committed by the accused as a part of the same transaction can be tried
together in one trial, even if those offences may have been committed as
a part of a larger conspiracy.
14.
The learned Amici Curiae pointed out that the judgment of this Court in
Vani Agro Enterprises v. State of Gujarat & Ors.6 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, this 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. We find force in the submission of the learned Amici Curiae
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, we recommend 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.
15.
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.
16.
The learned Amici Curiae have brought to our notice that separate
complaints are filed under Section 138 of the Act for dishonour of
cheques which are part of the same transaction. Undue delay in service
of summons is the main cause for the disproportionate accumulation of
complaints under Section 138 before the courts. The learned Amici
suggested that 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. We are in agreement with the suggestion made by the
learned Amici Curiae. 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.
INHERENT POWERS OF THE MAGISTRATE
17.
In K. M. Mathew v. State of Kerala & Anr.8, this Court 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 an erroneous
order of issue of process was held to be contrary to the scheme of the
Code in Adalat Prasad v. Rooplal Jindal and Others9. 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 this Court in
Subramanium Sethuraman v. State of Maharashtra & Anr.10. The law
laid down in Adalat Prasad (supra) was reiterated.
18.
It was contended by learned Amici Curiae 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. He referred to a judgment of this Court in
Meters and Instruments Private Limited and Another v. Kanchan Mehta11
which reads as follows:
"While
it is true that in Subramanium Sethuraman v. State of Maharashtra 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 recognised.
After
the 2002 Amendment, Section 143 of the 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 CrPC 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."
19.
In Meters and Instruments (supra), this Court was of the opinion that
Section 143 of the Act confers implied power on the Magistrate to
discharge the accused, if the complainant is compensated to the
satisfaction of the court. On that analogy, it was held that apart from
compounding by the consent of the parties, the Trial Court has the
jurisdiction to pass appropriate orders under Section 143 in exercise of
its inherent power. Reliance was placed by this Court on Section 258 of
the Code to empower the Trial Courts to pass suitable orders.
20.
Section 143 of the Act mandates that the provisions of summary trial of
the Code shall apply "as far as may be" to trials of complaints under
Section 138. Section 258 of the Code empowers the Magistrate to stop the
proceedings at any stage for reasons to be recorded in writing and
pronounce a judgment of acquittal in any summons case instituted
otherwise than upon complaint. Section 258 of the Code is not applicable
to a summons case instituted on a complaint.
Therefore,
Section 258 cannot come into play in respect of the complaints filed
under Section 138 of the Act. The judgment of this Court in Meters and
Instruments (supra) in so far as it conferred power on the Trial Court
to discharge an accused is not good law. Support taken from the words
"as far as may be" in Section 143 of the Act is inappropriate. The words
"as far as may be" in Section 143 are used only in respect of
applicability of Sections 262 to 265 of the Code and the summary
procedure to be followed for trials under Chapter XVII. Conferring power
on the court by reading certain words into provisions is impermissible.
A
judge must not rewrite a statute, neither to enlarge nor to contract it.
Whatever temptations the statesmanship of policy-making might wisely
suggest, construction must eschew interpolation and evisceration. He
must not read in by way of creation12. The Judge's duty is to interpret
and apply the law, not to change it to meet the Judge's idea of what
justice requires13. The court cannot add words to a statute or read
words into it which are not there14.
21. A
close scrutiny of the judgments of this Court in Adalat Prasad (supra)
and Subramanium Sethuraman (supra) would show that they do not warrant
any reconsideration. The Trial Court cannot be conferred with inherent
power either to review or recall the order of issuance of process. As
held above, this Court, in its anxiety to cut down delays in the
disposal of complaints under Section 138, has applied Section 258 to
hold that the Trial Court has the power to discharge the accused even
for reasons other than payment of compensation. However, amendment to
the Act empowering the Trial Court to reconsider/recall summons may be
considered on the recommendation of the Committee constituted by this
Court which shall look into this aspect as well.
22.
Another submission made by the learned Amici Curiae relates to the power
of the Magistrate under Section 322 of the Code, to revisit the order
of issue of process if he has no jurisdiction to try the case. We are in
agreement with the learned Amici Curiae that in case 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.
23.
Though we have referred all the other issues which are not decided
herein to the Committee appointed by this Court on 10.03.2021, it is
necessary to deal with the complaints under Section 138 pending in
Appellate Courts, High Courts and in this Court. We are informed by the
learned Amici Curiae that cases pending at the appellate stage and
before the High Courts and this Court can be settled through mediation.
We request the High Courts to identify the pending revisions arising out
of complaints filed under Section 138 of the Act and refer them to
mediation at the earliest. 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.
24. The upshot of the above discussion leads us to the following conclusions:
1)
The High Courts are requested to issue practice directions to the
Magistrates to record reasons before converting trial of complaints
under Section 138 of the Act from summary trial to summons trial.
2)
Inquiry shall be conducted on receipt of complaints under Section 138 of
the Act to arrive at sufficient grounds to proceed against the accused,
when such accused resides beyond the territorial jurisdiction of the
court.
3)
For the conduct of inquiry under Section 202 of the Code, evidence of
witnesses on behalf of the complainant shall be permitted to be taken on
affidavit. In suitable cases, the Magistrate can restrict the inquiry
to examination of documents without insisting for examination of
witnesses.
4) We
recommend that suitable amendments be made to the Act for provision of
one trial against a person for multiple offences under Section 138 of
the Act committed within a period of 12 months, notwithstanding the
restriction in Section 219 of the Code.
5)
The High Courts are requested to issue practice directions to the Trial
Courts to treat service of summons in one complaint under Section 138
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.
6)
Judgments of this Court in Adalat Prasad (supra) and Subramanium
Sethuraman (supra) have interpreted the law correctly and we reiterate
that there is no inherent power of Trial Courts to review or recall the
issue of summons. This does not affect the power of the Trial Court
under Section 322 of the Code to revisit the order of issue of process
in case it is brought to the court's notice that it lacks jurisdiction
to try the complaint.
7)
Section 258 of the Code is not applicable to complaints under Section
138 of the Act and findings to the contrary in Meters and Instruments
(supra) do not lay down correct law. To conclusively deal with this
aspect, amendment to the Act empowering the Trial Courts to
reconsider/recall summons in respect of complaints under Section 138
shall be considered by the Committee constituted by an order of this
Court dated 10.03.2021.
8)
All other points, which have been raised by the Amici Curiae in their
preliminary report and written submissions and not considered herein,
shall be the subject matter of deliberation by the aforementioned
Committee. Any other issue relating to expeditious disposal of
complaints under Section 138 of the Act shall also be considered by the
Committee.
25. List the matter after eight weeks. Further hearing in this matter will be before 3-Judges Bench.
26.
We place on record our appreciation for the valuable assistance rendered
by Mr. Sidharth Luthra, learned Senior Counsel and Mr. K. Parameshwar,
learned Counsel, as Amici Curiae.
................................CJI. [ S. A. BOBDE ]
..................................J. [ L. NAGESWARA RAO ]
..................................J. [B. R. GAVAI ]
..................................J. [ A. S. BOPANNA ]
..................................J. [ S. RAVINDRA BHAT ]
New Delhi,
April 16, 2021
