Sunday, 11 May 2014

SECTION 138 of NI ACT: GUIDELINES BY SUPREME COURT TO CURB PENDENCY

Having regard to the ever increasing pendency of cases under the Negotiable Instruments Act, 1881 (“Act”) and lack of uniform practice by the Criminal Courts in trial of cases under the Act, the Supreme Court of India in its judgment in the case of Indian Banks’ Association & Others Vs. Union of India & Others[1] has laid down elaborate procedures directing strict adherence by the Criminal Courts in India, so as to ensure speedy disposal of cases.

While considering the submissions made on behalf of the Indian Banks’ Association, the Apex Court observed that though a cheque is widely accepted as a negotiable instrument in lieu of payments, the intent of legislature in augmenting the acceptability of cheques towards settlement of liability by making the drawer of the cheque liable for a criminal offence, could not be achieved.

In its judgment, the Supreme Court while expounding the underlying intent and basis of various provisions of the Act dealing with cheque dishonor and trial thereof, has laid down the following guidelines to be followed by all Criminal Courts whilst trying an offence under section 138:

“DIRECTIONS:

(1)  Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2)  MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may
take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3)  Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4)  Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination.

(5)  The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.” 

It is noteworthy that in the recent past guidelines/explanation as above having been enumerated by various High Court including by the Delhi High Court and the Bombay High Court, striving to ensure speedy disposal of cases by removing ambiguities with respect to interpretation of section 138 through section 145 of the Act; a fact which has been duly acknowledged by the Supreme Court in the present pronouncement.

The Delhi High Court in the case of Rajesh Agarwal vs. State and Others[2], had laid down more or less similar guidelines, except that examination-in-chief, cross-examination and re-examination of the complainant should be conducted in three months and that a witness subject to permission of the Court, may also present his/her statement by way of affidavit. In-spite of such guidelines and explanations having been existence for quite some time, the menace created by complaints under section 138 of the Act and the pendency thereof, have only increased multi-fold.

Nonetheless, a precedent now having been laid down by the Supreme Court is likely to be construed, followed and adhered more diligently. That apart, one of the cardinal difference which the present judgment is likely to bring about inter alia in the trial of offence under section 138 of the Act is uniformity within various Criminal Courts in India. 



[1] Writ Petition (Civil) No. 18 of 2013
[2] 171 (2010) DLT 51

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