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TMI Blog2005 (2) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... to ensure that these complaints are disposed of expeditiously and unscrupulous people do not take undue advantage of the pendency of these complaints before the Courts. Undoubtedly, dishonoured of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee, and the entire credibility of the business transaction within and outside the country suffers a serious set back. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment, specifically incorporated the provisions of Sections 138 to 142 of the Act. The provisions of Section 138 of the Act would be attracted only when the cheque has been issued for the discharge of any debt or other legally enforceable liability. The maker of the cheque is not liable for prosecution if the cheque is given by way of a gift, present or donation and is dishonoured. Subsection (1) of Section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of subsection (1) provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2004: 4. The petitioner Company approached this Court against the order of the learned Sessions Judge delivered in Criminal Revision Application No. 713 of 2003 on 28th November, 2003 in proceedings emanated from Section 138 of the Act. The learned Metropolitan Magistrate, Mumbai, by his order dated 1st August, 2003, arrived at the conclusion that the amendment, more particularly in Section 145 of the Act, has been introduced by the Legislature with an intent to accelerate disposal of the cases. Subsection (1) has provided right and liberty to the Company to file its evidence (examination in chief) by way of an affidavit. The Court directed the matter to be placed for the cross examination of the witness after examination in chief was tendered by filing affidavit. 5. Aggrieved by the order, accused respondent, Mannalal Khandelwal, filed a Criminal Revision Application, No. 713 of 2003, before the learned Sessions Judge, Greater Mumbai, at Mumbai. The learned Additional Sessions Judge, by order dated 28th November, 2003, set aside the order dated 1st August, 2003 passed by the Metropolitan Magistrate and consequently, the application filed by the respondent for recording of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner has filed an application for proponing the date, which was rejected after hearing the parties. The petitioner in this petition has made serious grievance of undue delay which occurs in disposal of complaints under Section 138 of the Act by the Metropolitan Magistrates. According to the petitioner, normally, there are only one or two hearings of these cases in the entire year and consequently, there is enormous delay in disposal of these cases. 10. In another petition (Suo Motu PIL No. 157 of 2004) also, unduly long delay in disposal of these complaints has been highlighted. In the daily national newspaper Deccan Chronicle dated 16th September, 2004, it was published that 2,50,000 cheque bouncing cases, involving ₹ 7,000 crores to ₹ 8,000 crores, are pending in the 47 Magistrates' Courts in Mumbai. 11. Pursuant to the notice issued by this Court, the Registrar, Legal, of this Court, filed an affidavit, according to which, as on 1st April, 2004, 93,631 complaints under Section 138 of the Act were pending in Metropolitan Magistrates' Courts, Mumbai. 12. It is also submitted in the said affidavit that 20 additional posts of Metropolitan Magistrates, on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or other liability" means a legally enforceable debt or other liability." 16. Section 140 deals with defence which may not be allowed in any prosecution under Section 138. Section 138 deals with offences by companies. Sections 142 deals with cognizance of offences. Sections 138 to 142 have been incorporated in the Act as a result of strong public opinion for inculcating faith in the efficacy of banking operations and credibility in transacting business on the basis of negotiable instruments. Introducing these provisions became even more important, because our economy has now been liberalised and is becoming global. 17. Section 138, in fact, has been introduced to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in the account maintained by him in a bank and induce the payee or holder in due course to act upon it. In other words, these provisions have been introduced to give greater credibility to our trade, business, commerce and industry, which is absolutely imperative in view of the growing international trade and business. The constitutional validity of these provisions has been upheld by the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; (viii) Hearing of application, if moved, for recalling the summoning order and passing order; (ix) Asking the accused regarding his guilt or otherwise by a notice under Section 251 of the Criminal Procedure Code; (x) On his pleading not guilty, to again examine the complainant and witnesses, to permit their cross examination and recording the statement of accused under Section 281 of the Criminal Procedure Code and to ask him to lead his defence evidence; (xi) Pronouncing the judgment and order. 22. It is a matter of common experience that enormous time is spent in service of summons on the accused for a variety of reasons and the most important reason is the accused's tendency of avoiding service. The Court must adopt all pragmatic methods of services on the accused. Repeated summons be sent by employing all methods, including Email, to ensure service of summons. The concerned Court should not give long dates, primarily to prevent misuse and abuse of the system by the accused. It is always desirable to have process service agency attached to the District and Sessions Court and the High Court to ensure effective control on the process serving agency. 23. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere to lend greater acceptability and credibility to the business transactions and to establish that the cheques are a trustworthy substitute for cash payment. The other object and inherent intention of enacting the said provisions is clear, viz., that the Legislature was extremely keen and anxious in ensuring expeditious disposal of cases pertaining to dishonoured of cheques. The said amendments were, in fact, introduced primarily to accomplish the said object. 30. The Courts have to give meaning and translate the legislative intention of the Parliament (a combined will of the people of this country) while interpreting laws. The Courts must adopt suitable and effective procedure to achieve the legislative objects. The Court's procedure also has to be designed to fulfil the object and intention behind incorporating the aforesaid provisions. In other words, it is the obligation of the Courts to develop or carve out the procedure by which the complaints filed under these provisions are disposed of as expeditiously as possible. 31. While enacting these provisions, the Legislature has been very careful in protecting the honest drawers. Accordingly, dishonoured of cheque, per se, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, 1996CriLJ1692, have observed that the object of bringing Section 138 of the Act on the statute appears to be to inculcate faith in the efficacy of the banking operations and credibility in transacting business on negotiable instruments. The fact that in Bombay Courts, about one lakh complaints are pending as on 31st December, 2004 clearly demonstrates that the credibility and acceptability of issuance of cheques in settlement of liability is seriously in question. To control the flood of these complaints effectively, it is imperative to properly comprehend the legislative intention behind Sections 138 to 142 of the Act strictly and fully implement the legislative intention. In no civilised society, within such a short period, complaints of such large magnitude are filed and remain pending for years. These complaints also adversely reflect upon the overall honesty, integrity and credibility of our business ethics in the commercial capital of this country. 35. There has been a rapid decline in the value system of general trade and credibility of business. Therefore, it has become imperative to take all permissible steps to curb this tendency. Our attempts must be to ensure that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of subsection (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 39. We are clearly of the opinion that according to the language of Section 145 of the Act, the evidence (examination in chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he / she may request the Court to call the complainant for cross examination. 40. Immediately after the presence of the accused is secured, an option be given to him whether, at that stage, he would be willing to pay the amount due, along with reasonable interest, and the Court may consider passing suitable order. But where the accused is not willing to pay the principal amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41. All these petitions are accordingly disposed of. Rule is partly made absolute in Criminal Writ Petition No. 1228 of 2004. All intervention applications stand disposed of. 42. These petitions would, however, be listed on 1 st March, 2005 only to ensure compliance of our judgment, as mentioned below. 43. We would like to place on record that presently, there are 727 posts of Civil Judges, Junior Division, in the State of Maharashtra. The entire process of filling these vacancies is complete, as far as this Court is concerned. The Civil Judges, Junior Division, and Metropolitan Magistrates are already overworked; and giving them additional burden may not yield any fruitful and desirable results. About 4 lakh complaints under Section 138 of the Act are pending in various Courts. According to the legislative intention, these complaints must be disposed of expeditiously. The only way to achieve this object is to have larger number of judicial officers. Therefore, in the larger interest of justice, it has become absolutely imperative to create at least 100 additional posts of Judicial Officers in the Cadre of Civil Judges, Junior Division, in the State of Maharashtra. 44. We direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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