2010 (7) TMI 279 - HC - Companies Law

Whether the accused, under article 21 of the Constitution of India, has a right of silence in a criminal trial and therefore he cannot be forced to disclose his defence? Held that - Since summoning order in all these cases have been issued, it is now the obligation of these petitioners to take notice under section 251 of the Code of Criminal Procedure, if not already taken, and enter their plea of defence before the concerned Metropolitan Magistrate s court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witness, they should do so before the court of Metropolitan Magistrate. These petitions are, therefore, hereby dismissed. The petitioners shall appear before the court of concerned Metropolitan Magistrate and trial shall proceed.

Issues Involved:
1. Quashing of complaints under Section 138 of the Negotiable Instruments Act, 1881.
2. Powers of the Metropolitan Magistrates and High Court regarding summoning orders.
3. Proper procedure for conducting trials under Section 138 of the Negotiable Instruments Act, 1881.
4. Summary trial provisions and their implementation.
5. Rights of the accused under Article 21 of the Constitution of India.
6. Service of summons on the accused.
7. Handling cases with multiple accused.
8. Guidelines for summary trial procedures.

Issue-wise Detailed Analysis:

1. Quashing of Complaints under Section 138 of the Negotiable Instruments Act, 1881:
The court observed that numerous petitions are filed under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash complaints under Section 138 of the Negotiable Instruments Act, 1881. Petitioners argue that the Metropolitan Magistrates cannot recall their summoning orders and that the High Court should quash the complaints. The court referenced Adalat Prasad v. Rooplal Jindal [2004] 7 SCC 338, which established that the High Court can only intervene if no case is made out against the accused based on the complaint and material available at the time of summoning.

2. Powers of the Metropolitan Magistrates and High Court Regarding Summoning Orders:
The court clarified that the High Court should not entertain petitions for quashing summoning orders based on various defenses raised by the petitioners, such as not being a director at the relevant time, being a sleeping partner, or the cheque being issued as security. These defenses should be raised before the Metropolitan Magistrate, not the High Court.

3. Proper Procedure for Conducting Trials under Section 138 of the Negotiable Instruments Act, 1881:
The court emphasized that the Metropolitan Magistrates should follow the summary trial procedure as mandated by Section 143 of the Negotiable Instruments Act, 1881. The complainant should file an affidavit of evidence along with necessary documents, and the Metropolitan Magistrate should scrutinize these to decide on summoning the accused. Upon the accused's appearance, the court should record the plea of defense and proceed with the trial accordingly.

4. Summary Trial Provisions and Their Implementation:
The court highlighted that Section 143 of the Negotiable Instruments Act, 1881, mandates summary trials for offenses under this Act. Section 145 allows the complainant to give evidence by affidavit, which should be read at both pre-summoning and post-summoning stages unless the court orders otherwise. The court criticized the current practice of Metropolitan Magistrates, which deviates from the summary trial provisions and results in prolonged litigation.

5. Rights of the Accused under Article 21 of the Constitution of India:
The court addressed the argument that the accused has a right to silence under Article 21 of the Constitution. It clarified that in cases under Section 138 of the Negotiable Instruments Act, 1881, the accused must disclose their defense due to the technical nature of the offense and the onus of proving defenses like lack of consideration or not being a director lies on the accused as per Section 106 of the Indian Evidence Act, 1872.

6. Service of Summons on the Accused:
The court explained that summons can be served through registered post, speed post, or courier service. If the accused refuses to receive the summons, service by affixation is valid under Section 65 of the Code of Criminal Procedure. The court of the Metropolitan Magistrate should take coercive measures if the accused evades service.

7. Handling Cases with Multiple Accused:
The court stated that in cases with multiple accused, the Metropolitan Magistrate should proceed with the trial for those who are served and appear, without waiting for the completion of service on all accused. The court should record the plea of defense of the appearing accused and allow them to lead evidence.

8. Guidelines for Summary Trial Procedures:
The court provided a step-by-step procedure for summary trials under Section 138 of the Negotiable Instruments Act, 1881:
- Step I: Scrutinize the complaint and documents, take cognizance, and issue summons if an offense is made out.
- Step II: On the accused's appearance, record the plea of defense and fix the case for defense evidence.
- Step III: Decide on applications for recalling witnesses and proceed with defense evidence.
- Step IV: Hear arguments from both sides.
- Step V: Pass the order/judgment.

Conclusion:
The court dismissed all the petitions and directed the petitioners to appear before the concerned Metropolitan Magistrate to proceed with the trial as per the outlined procedure. A copy of the judgment was to be circulated among all District Judges for dissemination among judicial officers.

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