9911796707
TMI Blog2021 (4) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... R Mr. Ashish Yadav, Adv. Mr. Rakshit Jain, Adv. Mr. Vishal Banshal, Adv. Mrs. Garima Prashad, AAG Mr. Abhinav Agrawal, AOR Mr. Harpreet Singh Gupta, Adv. Mr. Manish Kumar, AOR Mr. Gaurav Agrawal, AOR Mr. Raghvendra Kumar, Standing Counsel/Adv. Mr. Anand Kumar Dubey, Adv. Mr. Narendra Kumar, AOR Mr. Anupam Raina, AOR Mr. Sunando Raha, Adv. Mr. Naresh K. Sharma, AOR Mr. S. Udaya Kumar Sagar, AOR Ms. Sweena Nair, Adv. Mr. Abhimanyu Tewari, AOR Mrs. Garima Prashad, Sr. Adv. Mr. Abhinav Agrawal, AOR Mr. V. G. Pragasam, AOR Mr. S. Prabhu Ramasubramanian, Adv. Mr. M. Yogesh Kanna, AOR Mr. Raja Rajeshwaran S, Adv. Mr. Aditya Chadha, Adv. Ms. Uma Prasuna Bachu, Adv. Mrs. Jaspreet Gogia, AOR Ms. Mandakini Singh, Adv. Mr. Karanvir Gogia, Adv. Ms. Shivangi Singhal, Adv. Ms. Ashima Mandla, Adv. Mr. Yashvardhan, Adv, Mr. Apoorv Shukla, AOR, Ms. Smita Kant, Adv., Ms. Ishita Farsaiya, Adv., Ms. Prabhleen Kaur, Adv. Ms. Garima Prashad, AOR Mr. Avijit Mani Tripathi, AOR Mr. T.K. Nayak, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Ms. Anupama Ngangom, Adv. Mr. Karun Sharma, Adv. Mr. Sachin Patil, AOR Mr. Rahul Chitnis, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Mr. Jishnu M.L., Adv. Ms. Priyanka P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdhendumauli Prasad, AOR Mr. Parth Awasthi, Adv. Dr. Rajesh Pandey, Adv. Ms. Aswathi M.K., AOR Mr. Ramesh Babu M. R., AOR Ms. Manisha Singh, Adv. Ms. Nisha Sharma, Adv. Dr. Abhishek Atrey, AOR Mr. Anando Mukherjee, AOR Mr. Vinay Garg, AOR Mr. Kunal Chatterji, AOR Applicant-in-person Mr. Gopal Jha, AOR Mr. Romy Chacko, AOR Mr. Satish Pandey, AOR Mr. Sameer Parekh, AOR Mr. Mahesh Thakur, AOR Mr. R. Nedumaran, AOR Mr. Sanjai Kumar Pathak, AOR Ms. Taruna Ardhendumauli Prasad, AOR Mr. Himanshu Shekhar, AOR Mr. Pai Amit, AOR Mr. Nirnimesh Dube, AOR M/S. Parekh & Co., AOR Mr. V. N. Raghupathy, AOR Mr. Shibashish Misra, AOR Ms. Rachana Srivastava, AOR M/S. Plr Chambers And Co., AOR Mr. Samir Ali Khan, AOR Mr. Shree Pal Singh, AOR Ms. Pragati Neekhra, AOR Mr. Raj Bahadur Yadav, AOR Mr. Apoorv Kurup, AOR Mr. Aniruddha P. Mayee, AOR Mr. Sibo Sankar Mishra, AOR Ms. Uttara Babbar, AOR Mr. V. K. Biju, AOR Mr. P. V. Yogeswaran, AOR Ms. K. Enatoli Sema, AOR Ms. Christi Jain, AOR Ms. Radhika Gautam, AOR Mr. Arjun Garg, AOR Ms. G. Indira, AOR Ms. Aswathi M.k., AOR Mr. Abhishek Atrey, AOR Mr. Ramesh Babu M. R., AOR Dr. Monika Gusain, AOR Ms. Manisha Ambwani, AOR Mr. Vishwa Pal Singh, AOR Mr. Mahfooz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the matter had to be considered by a larger bench in view of the important issues that arose for determination before this Court. The reference of the matter to a larger bench was also necessitated due to the submission made by the learned Amici Curiae that certain judicial pronouncements of this Court needed clarification. We have heard learned Amici Curiae, Advocates for some States, the learned Solicitor General of India, Mr. Vikramjit Banerjee, learned Additional Solicitor General of India, Mr. Ramesh Babu, Advocate for the Reserve Bank of India and Dr. Lalit Bhasin, Advocate for the Indian Banks' Association. 3. Chapter XVII inserted in the Act, containing Sections 138 to 142, came into force on 01.04.1989. Dishonour of cheques for insufficiency of funds was made punishable with imprisonment for a term of one year or with fine which may extend to twice the amount of the cheque as per Section 138. Section 139 dealt with the presumption in favour of the holder that the cheque received was for the discharge, in whole or in part, of any debt or other liability. The defence which may not be allowed in a prosecution under Section 138 of the Act is governed by Section 140. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with in this order. 6. The learned Amici Curiae identified seven major issues from the responses filed by the State Governments and Union Territories which are as under: a) Service of summons b) Statutory amendment to Section 219 of the Code c) Summary trials d) Attachment of bank accounts e) Applicability of Section 202 of the Code f) Mediation g) Inherent jurisdiction of the Magistrate 7. Service of summons on the accused in a complaint filed under Section 138 of the Act has been one of the main reasons for the delay in disposal of the complaints. After examining the responses of the various State Governments and Union Territories, several suggestions have been given by the learned Amici Curiae for speeding up the service of summons. Some of the suggestions given by him pertain to dishonour slips issued by the bank under Section 146 of the Act, disclosing the current mobile number, email address and postal address of the drawer of the cheque, the details of the drawer being given on the cheque leaf, creation of a Nodal Agency for electronic service of summons and generation of a unique number from the dishonour memo. The Union of India and the Reserve Bank of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of reasons for his findings. There is a restriction that the procedure for summary trials under Section 262 is not to be applied for any sentence of imprisonment exceeding three months. However, Sections 262 to 265 of the Code were made applicable "as far as may be" for trial of an offence under Chapter XVII of the Act, notwithstanding anything contained in the Code. It is only in a case where the Magistrate is of the opinion that it may be necessary to sentence the accused for a term exceeding one year that the complaint shall be tried as a summons trial. From the responses of various High Courts, it is clear that the conversion by the Trial Courts of complaints under Section 138 from summary trial to summons trial is being done mechanically without reasons being recorded. The result of such conversion of complaints under Section 138 from summary trial to summons trial has been contributing to the delay in disposal of the cases. Further, the second proviso to Section 143 mandates that the Magistrate has to record an order spelling out the reasons for such conversion. The object of Section 143 of the Act is quick disposal of the complaints under Section 138 by following t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on record. 11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr. (2016) 11 SCC 105 where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici. 12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 220. In his preliminary report, the learned Amici Curiae suggested that a legislative amendment is required to Section 219 of the Code to avoid multiplicity of proceedings where cheques have been issued for one purpose. In so far as Section 220 of the Code is concerned, the learned Amici Curiae submitted that same/similar offences as part of the same transaction in one series of acts may be the subject matter of one trial. It was argued by the learned Amici Curiae that Section 220 (1) of the Code is not controlled by Section 219 and even if the offences are more than three in respect of the same transaction, there can be a joint trial. Reliance was placed on a judgment of this Court in Balbir v. State of Haryana & Anr. (2000) 1 SCC 285 to contend that all offences alleged to have been committed by the accused as a part of the same transaction can be tried together in one trial, even if those offences may have been committed as a part of a larger conspiracy. 14. The learned Amici Curiae pointed out that the judgment of this Court in Vani Agro Enterprises v. State of Gujarat & Ors. 2019 (10) SCJ 238 needs clarification. In Vani Agro (supra), this Court was dealing with the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with which several cheques issued as a part of the same transaction can be the subject matter of one trial. 16. The learned Amici Curiae have brought to our notice that separate complaints are filed under Section 138 of the Act for dishonour of cheques which are part of the same transaction. Undue delay in service of summons is the main cause for the disproportionate accumulation of complaints under Section 138 before the courts. The learned Amici suggested that one way of reducing the time spent on service of summons is to treat service of summons served in one complaint pertaining to a transaction as deemed service for all complaints in relation to the said transaction. We are in agreement with the suggestion made by the learned Amici Curiae. Accordingly, the High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. INHERENT POWERS OF THE MAGISTRATE 17. In K. M. Mathew v. State of Kerala & Anr. (1992) 1 SCC 217, this Court dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions prior to the 2002 Amendment. The statutory scheme post-2002 Amendment as considered in Mandvi Coop. Bank and J.V. Baharuni has brought about a change in law and it needs to be recognised. After the 2002 Amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 CrPC which enables proceedings to be stopped in a summons cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires - Dupont Steels Ltd. v. Sirs (1980) 1 All ER 529 (HL). The court cannot add words to a statute or read words into it which are not there - Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323. 21. A close scrutiny of the judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) would show that they do not warrant any reconsideration. The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. As held above, this Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation. However, amendment to the Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted by this Court which shall look into this aspect as well. 22. Another submission made by the learned Amici Curiae relates to the power of the Magistrate under Section 322 of the Code, to revisit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. 6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint. 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
