INTRODUCTION:
In the present blog guidelines for disposal of cheque bounce cases have been discussed. The apex court constitution bench takes suo moto action in “In Re: Expeditions Trial of a case under Section 138 of N.I. Act 1881” reported as (2021) 4 S.C.R. 257 five judge’s benches articulated guidelines for all the courts for speedy disposal of the cheque bounce case.
Chapter XVII containing sections 138 to 142 was inserted on 1.04.1989 thereby dishonour of cheque due to insufficiency of funds was made punishable as per section 138 of the NI Act, with imprisonment for a term of one year or with fine. The maximum fine that could be imposed is twice the amount of cheque. Further section 139 envisages that it will be deemed a presumption in favour of the holder of a cheque that cheque is issued for the discharge of certain liabilities or debt. Section 142 elaborates on the power of the magistrate to take cognizance of a complaint filed under section 138 of the NI Act. Section 141 is a case where a complaint under section 138 can be filed against a company.
To deal with the problem of delay in disposal of case related to cheque bounce further the Act was amended in 2002 and section 143 to 147 were inserted. Firstly section 143 of the Act empowers the court to go by summery trial for speedy disposal of complaint filed under section 138 of NI Act. It is pertinent to mention that even after the aforesaid amendment there was no apposite outcome and courts continues to struggle with pendency of complaints under section 138 of the Act.
REASONS FOR DELAY IN DISPOSAL
In para 6 of the aforesaid case amici curiae highlighted following reasons for delay in disposal of cases:
- Service of summons;
- Statutory amendment to section 219 of Criminal Procedure Code;
- Summary Trial;
- Attachment of bank accounts;
- Applicability of section 202 of Crpc;
- Mediation;
- Inherent Power of the magistrate.
Mechanical conversion of summary trial to summon trial:
Under criminal law the court is empowered to convert the summary trial into a summon trial in a case where the sentence could exceed one year, however magistrate is bound to record the reason for such conversion of trial as stated in section 143 of the NI Act. It was contended by the amici curiae in the aforesaid case before the apex court that there is the conversion of the trial without any cogent reason which caused a significant delay in the disposal of the case under section 138.
The apex court issued directions to all the High Courts to pass such directions which will be complied with by all the subordinate courts of their respective jurisdictions thereby all the magistrates have to record the reason for conversion of summary trial into summon trial.
Applicability of section 202 of Crpc:
Section 202 of Crpc confers power on the magistrate to conduct an inquiry to ascertain whether there is sufficient ground to proceed further against the accused. Further section 202 was amended in 2006 thereby now the magistrate must conduct the inquiry and postpone the issuance of process in a case where beyond the jurisdiction of said magistrate. There was a difference of opinion among the different High Courts on the applicability of section 138 of the NI Act on any complaint under section 138 of the NI Act. The court concluded that it is necessary to conduct an inquiry under section 202 in case of complaint under section 138 of the NI Act and the magistrate should thereby decide whether there is sufficient reason to proceed.
Testimony of witness:
Another reason highlighted for the delay in disposal is the time wasted in recording the evidence of witnesses. Section 202(2) stipulates that the magistrate shall take the evidence of witnesses on oath for issuance of summon. It is also pertinent to read section 145 of the NI Act which directs to record the complainant’s evidence on the affidavit which shall be read in every inquiry or proceeding irrespective of what has been provided in the Crpc. It was contended that the primary purpose of section 145 of the NI Act is the speedy disposal of complaints under section 138 therefore it was agreed by the court that evidence of the witnesses should also be recorded on affidavit like the complainant. There is no reason why the evidence of the witnesses is to be recorded personally by the magistrate on each instance whereas the complainant’s evidence is recorded through affidavit.
GUIDELINES FOR DISPOSAL OF CHEQUE BOUNCE CASES:
- All the High courts were ordered to issue directions magistrates to record the reason for conversion of trail from summary trial to summon trial;
- Inquiry under section 202 shall be conducted in order to ascertain whether there is any case against the accused or not when such accused reside outside jurisdiction of such magistrate who is taking cognizance;
- Evidence of witnesses on behalf of complainant should be taken on affidavit;
- Court suggested to amend the Act for provision of one trial against a person for multiple offences filed under section 138 of NI Act committed within 12 months irrespective of section 219 of Crpc;
- Trial court have no inherent power to review or recall the issue of summons, however in the light of section 322 of Crpc trial court have power to check the correctness of the order of issue of process in a case where it is brought to the notice of the court that there is lack of jurisdiction to try complaint