Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India
Indian Bank Association & Ors vs. Union of India & Anr.
AIR 2014 SC 2528; (2014) 5 SCC 590, 2014CriLJ3119
Hon’ble Judges/Corum: K.S. Radhakrishnan, Vikramajit Sen
Date of Decision: 21.01.2014
FACTS:-
The first Petitioner Indian Bank Association (IBA) is a voluntary association of persons with 174 banks/financial institutions as its members, and functions as think tank for banks in the matters of concern for the whole banking industry. According to the petitioners the banking industry has been put to a considerable disadvantage due to the delay in disposing of the cases relating to Negotiable Instruments Act, 1881 (the Act). Furthermore, 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, and thus inter alia pray before the court to lay 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 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.
ISSUE:-
Problem for consideration in this case is non-uniform procedure adopted by various courts in cases relating to dishonour of cheques which delays the disposal of such cases.
JUDGMENT:-
The court started with the observation that Sections 138 to 142 of the Act have not achieved desired result for dealing with dishonoured cheques and hence legislature 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. Subsequently, the court quoted different Supreme court decisions and discussed the objectives of the proceedings of the Section 138 of the Act, and said 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.
The Court has 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.
Amendment Act, 2002 has to be given effect 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. Consequently, the Court listed down certain procedures, given by different High Courts, and directed all the criminal courts in the country to follow these directions/procedures for speedy disposal of cases under Section 138 of the Act.
HELD:-
Following directions were held to be applicable on all the criminal courts across the country dealing with cases under Section 138 of the Act:
1. Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138of 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.
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