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TMI Blog2021 (4) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... cy for electronic service of summons and generation of a unique number from the dishonour memo. The Union of India and the Reserve Bank of India were directed to submit their responses to the suggestions made by the learned Amici Curiae on these aspects. Mechanical conversion of Summary Trial to Summons Trial - HELD THAT:- The object of Section 143 of the Act is quick disposal of the complaints under Section 138 by following the procedure prescribed for summary trial under the Code, to the extent possible. The discretion conferred on the Magistrate by the second proviso to Section 143 is to be exercised with due care and caution, after recording reasons for converting the trial of the complaint from summary trial to summons trial. Otherwise, the purpose for which Section 143 of the Act has been introduced would be defeated. We accept the suggestions made by the learned Amici Curiae in consultation with the High Courts. The High Courts may issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 from summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act. Inquiry u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. List the matter after eight weeks. Further hearing in this matter will be before 3-Judges Bench. - CJI. [ S. A. BOBDE ] , [ JUSTICE L. NAGESWARA RAO ] , [JUSTICE B. R. GAVAI ] , [JUSTICE A. S. BOPANNA And [JUSTICE S. RAVINDRA BHAT ] Counsel For the Parties : Mr. Sidharth Luthra, Sr. Adv. (A.C) Mr. K. Parameshwar, Adv. (A.C.) Mr. M. V. Mukunda, Adv. Ms. A. Sregurupriya, Adv. Mr. Rajat Mathur, Adv. Mr. Anmol Kheta, Adv. Mr. Sheezan Hashmi, Adv. Mr. Akshat Kumar, Adv. Mr. Tushar Mehta, Ld. SG Mr. Vikramjit Banerjee, Ld. ASG. Mrs. Neela Kedar Gokhle, Adv. Mr. P. V. Yogeshwaran, Adv. Mr. Divyansh H. Rathi, Adv. Mr. B. V. Balaram Das, AOR Mr. Raj Bahadur Yadav, Adv. Ms. Manisha Ambwani, AOR Mr. G.S. Makker, AOR Mr. Saumya Sinha, Adv. Mr. Neeraj, AAG Mr. Piyush Beriwal, Adv. Dr. Monika Gusain, AOR Mr. Aviral Saxena, Adv. Mr. Vishwa Pal Singh, AOR Mr. Mahfooz A. Nazki, AOR Mr. Polanki Gowtham, Adv. Mr. Shaik Mohamad Haneef, Adv. Mr. T. Vijaya Bhaskar Reddy, Adv. Mr. Amitabh Sinha, Adv. Mr. Shrey Sharma, Adv. Mr. Shubhranshu Padhi, AOR Mr. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adv. Ms. Bansuri Swaraj, Adv. Mr. Divyansh Tiwari, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Nirnimesh Dube, AOR Mr. V. N. Raghupathy, AOR Ms. Rachana Srivastava, AOR Ms. Rachna Gandhi, Adv. Mr. Suhaan Mukerji, Adv. Mr. Vishal Prasad, Adv. Mr. Nikhil Parikshith, Adv. Mr. Abhishek Manchanda, Adv. Mr. Sayandeep Pahari, Adv. For M/S. PLR Chambers And Co., AOR Mr. Shree Pal Singh, AOR Mr. Abhimanyu Jhamba, Adv. Mr. Ashish Jhamb, Adv. Mr. Samir Ali Khan, AOR Ms. Pragati Neekhra, AOR Ms. Deepanwita Priyanka, Adv. Mr. Aniruddha P. Mayee, AOR Mr. Apoorv Kurup, AOR Ms. Nidhi Mittal, Adv. Ms. Uttara Babbar, AOR Mr. Manan Bansal, Adv. Ms. Shweta Mohta, Adv. Mr. Sibo Sankar Mishra, AOR Mr. Thomas P. Joseph, Sr. Adv. Mr. V.K. Biju, AOR Mr. Amlendu Kumar Akhilesh Kumar Jha, Adv. Mr. Abhay Pratap Singh, Adv. Mr. Shaji George, Adv. Ms. Rubina Jawed, Adv. Dr. Lalit Bhasin, Adv. Ms. Nina Gupta, Adv. Mr. P. V. Yogeswaran, AOR Ms. Christi Jain, AOR Ms. K. Enatoli Sema, AOR Mr. Amit Kumar Singh, Adv. Mr. Apratim Animesh Thakur, Adv. Ms. Prachi Hasija, Adv. Mr. Arjun Garg, AOR Ms. Shrutika Garg, Adv. Ms. Radhika Gautam, AOR Mr. K.V. Jagdishvaran, Adv. Ms. G. Indira, AOR Ms. Taruna Ardhendum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 . Mr. Sidharth Luthra, learned Senior Counsel was appointed as Amicus Curiae and Mr. K. Parameshwar, learned Counsel was requested to assist him. Notices were issued to the Union of India, Registrar Generals of the High Courts, Director Generals of Police of the States and Union Territories, Member Secretary of the National Legal Services Authority, Reserve Bank of India and Indian Banks Association, Mumbai as the representative of banking institutions. 2. The learned Amici Curiae submitted a preliminary report on 11.10.2020 which was circulated to all the Respondents. On 19.01.2021, the learned Amici Curiae informed this Court that only 14 out of 25 High Courts had submitted their responses to the preliminary report. The Reserve Bank of India had also filed its suggestions. Seven Directors General of Police had filed their affidavits putting forward their views to the preliminary report. The parties who had not filed their responses were granted further time and the matter was listed on 24.02.2021 for final disposal. During the course of the hearing, it was felt by a Bench of three Judges, consisting of the Chief Justice of India, L. Nageswara Rao, J. and S. Ravindra Bhat, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im on affidavit may be read as evidence in any inquiry, trial or other proceeding under the Code. Bank s slip or memo denoting that the cheque has been dishonoured is presumed to be prima facie evidence of the fact of dishonour of the cheque, according to Section 146. Section 147 makes offences punishable under the Act compoundable. The punishment prescribed under the Act was enhanced from one year to two years, along with other amendments made to Sections 138 to 142 with which we are not concerned in this case. 5. The situation has not improved as courts continue to struggle with the humongous pendency of complaints under Section 138 of the Act. The preliminary report submitted by the learned Amici Curiae shows that as on 31.12.2019, the total number of criminal cases pending was 2.31 crores, out of which 35.16 lakh pertained to Section 138 of the Act. The reasons for the backlog of cases, according to the learned Amici Curiae, is that while there is a steady increase in the institution of complaints every year, the rate of disposal does not match the rate of institution of complaints. Delay in disposal of the complaints under Section 138 of the Act has been due to reasons whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides that Sections 262 to 265 of the Code shall apply for the trial of all offences under Chapter XVII of the Act. The second proviso empowers the Magistrate to convert the summary trial to summons trial, if he is of the opinion that a sentence of imprisonment exceeding one year may have to be passed or that it is undesirable to try the case summarily, after recording reasons. The learned Amici Curiae has brought to the notice of this Court that summary trials are routinely converted to summons trials in a mechanical manner. The suggestions made by him in his preliminary note that the High Courts should issue practice directions to the Trial Courts for recording cogent and sufficient reasons before converting a summary trial to summons trial have been accepted by the High Courts. 9. Section 143 of the Act has been introduced in the year 2002 as a step-in aid for quick disposal of complaints filed under Section 138 of the Act. At this stage, it is necessary to refer to Chapter XXI of the Code which deals with summary trials. In a case tried summarily in which the accused does not plead guilty, it is sufficient for the Magistrate to record the substance of the evidence and deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court. (See: Vijay Dhanuka Ors. v. Najima Mamtaj Ors. (2014) 14 SCC 638, Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr. (2017) 3 SCC 528 and Birla Corporation Limited v. Adventz Investments and Holdings Limited Ors. (2019) 16 SCC 610). There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202. SECTIONS 219 AND 220 OF THE CODE 13. Section 219 of the Code provides that when a person is accused of more offences than one, of the same kind, committed within a space of 12 months, he may be tried at one trial for a maximum of three such offences. If more than one offence is committed by the same person in one series of acts so committed together as to form the same transaction, he may be charged with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be tried jointly as per Section 220 of the Code. What is meant by same transaction is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction - State of Andhra Pradesh v. Cheemalapati Ganeswara Rao Anr., (1964) 3 SCR 297. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review conferred on the Trial Courts by the Code. As there is no specific provision for recalling an erroneous order by the Trial Court, the judgment in the case of K. M. Mathew (supra) was held to be not laying down correct law. The question whether a person can seek discharge in a summons case was considered by this Court in Subramanium Sethuraman v. State of Maharashtra Anr. (2004) 13 SCC 324. The law laid down in Adalat Prasad (supra) was reiterated. 18. It was contended by learned Amici Curiae that a holistic reading of Sections 251 and 258 of the Code, along with Section 143 of the Act, should be considered to confer a power of review or recall of the issuance of process by the Trial Court in relation to complaints filed under Section 138 of the Act. He referred to a judgment of this Court in Meters and Instruments Private Limited and Another v. Kanchan Mehta (2018) 1 SCC 560 which reads as follows: While it is true that in Subramanium Sethuraman v. State of Maharashtra this Court observed that once the plea of the accused is recorded under Section 252 CrPC, the procedure contemplated under Chapter XX CrPC has to be followed to take the trial to its logical conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment of this Court in Meters and Instruments (supra) in so far as it conferred power on the Trial Court to discharge an accused is not good law. Support taken from the words as far as may be in Section 143 of the Act is inappropriate. The words as far as may be in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation - J. Frankfurter, Of Law and Men: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes through mediation. 24. The upshot of the above discussion leads us to the following conclusions: 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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