Having
regard to the ever increasing pendency of cases under the Negotiable
Instruments Act, 1881 (“Act”) and
lack of uniform practice by the Criminal Courts in trial of cases under the
Act, the Supreme Court of India in its judgment in the case of Indian Banks’ Association & Others Vs.
Union of India & Others[1]
has laid down elaborate procedures directing strict adherence by the Criminal
Courts in India, so as to ensure speedy disposal of cases.
regard to the ever increasing pendency of cases under the Negotiable
Instruments Act, 1881 (“Act”) and
lack of uniform practice by the Criminal Courts in trial of cases under the
Act, the Supreme Court of India in its judgment in the case of Indian Banks’ Association & Others Vs.
Union of India & Others[1]
has laid down elaborate procedures directing strict adherence by the Criminal
Courts in India, so as to ensure speedy disposal of cases.
While
considering the submissions made on behalf of the Indian Banks’ Association,
the Apex Court observed that though a cheque is widely accepted as a negotiable
instrument in lieu of payments, the intent of legislature in augmenting the
acceptability of cheques towards settlement of liability by making the drawer
of the cheque liable for a criminal offence, could not be achieved.
considering the submissions made on behalf of the Indian Banks’ Association,
the Apex Court observed that though a cheque is widely accepted as a negotiable
instrument in lieu of payments, the intent of legislature in augmenting the
acceptability of cheques towards settlement of liability by making the drawer
of the cheque liable for a criminal offence, could not be achieved.
In
its judgment, the Supreme Court while expounding the underlying intent and
basis of various provisions of the Act dealing with cheque dishonor and trial
thereof, has laid down the following guidelines to be followed by all Criminal
Courts whilst trying an offence under section 138:
its judgment, the Supreme Court while expounding the underlying intent and
basis of various provisions of the Act dealing with cheque dishonor and trial
thereof, has laid down the following guidelines to be followed by all Criminal
Courts whilst trying an offence under section 138:
“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.
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
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.
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.
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.
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.”
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.”
It
is noteworthy that in the recent past guidelines/explanation as above having
been enumerated by various High Court including by the Delhi High Court and the
Bombay High Court, striving to ensure speedy disposal of cases by removing
ambiguities with respect to interpretation of section 138 through section 145
of the Act; a fact which has been duly acknowledged by the Supreme Court in the
present pronouncement.
is noteworthy that in the recent past guidelines/explanation as above having
been enumerated by various High Court including by the Delhi High Court and the
Bombay High Court, striving to ensure speedy disposal of cases by removing
ambiguities with respect to interpretation of section 138 through section 145
of the Act; a fact which has been duly acknowledged by the Supreme Court in the
present pronouncement.
The
Delhi High Court in the case of Rajesh
Agarwal vs. State and Others[2],
had laid down more or less similar guidelines, except that examination-in-chief,
cross-examination and re-examination of the complainant should be conducted in
three months and that a witness subject to permission of the Court, may also
present his/her statement by way of affidavit. In-spite of such guidelines and
explanations having been existence for quite some time, the menace created by
complaints under section 138 of the Act and the pendency thereof, have only
increased multi-fold.
Delhi High Court in the case of Rajesh
Agarwal vs. State and Others[2],
had laid down more or less similar guidelines, except that examination-in-chief,
cross-examination and re-examination of the complainant should be conducted in
three months and that a witness subject to permission of the Court, may also
present his/her statement by way of affidavit. In-spite of such guidelines and
explanations having been existence for quite some time, the menace created by
complaints under section 138 of the Act and the pendency thereof, have only
increased multi-fold.
Nonetheless,
a precedent now having been laid down by the Supreme Court is likely to be
construed, followed and adhered more diligently. That apart, one of the cardinal
difference which the present judgment is likely to bring about inter alia in
the trial of offence under section 138 of the Act is uniformity within various Criminal
Courts in India.
a precedent now having been laid down by the Supreme Court is likely to be
construed, followed and adhered more diligently. That apart, one of the cardinal
difference which the present judgment is likely to bring about inter alia in
the trial of offence under section 138 of the Act is uniformity within various Criminal
Courts in India.
