In Re Expeditious Trial Of Cases … vs On 11.10.2020 Which Was … on 16 April, 2021


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Supreme Court of India

In Re Expeditious Trial Of Cases … vs On 11.10.2020 Which Was … on 16 April, 2021

Author: Hon’Ble The Justice

Bench: [ S ], [ A ], R G [B., [ L ], [ S ]

                                                                         REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                  CRIMINAL ORIGINAL JURISDICTION

                              SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020


                         In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION
                         138 OF N.I. ACT 1881.


                                          O   R     D   E   R


                         1.     Special Leave Petition (Criminal) No. 5464 of 2016

                         pertains to dishonour of two cheques on 27.01.2005 for an

                         amount of Rs.1,70,000/-.   The dispute has remained pending

                         for the past 16 years.   Concerned with the large number of

                         cases filed under Section 138 of the Negotiable Instruments

                         Act, 1881 (hereinafter 'the Act') pending at various levels, a

                         Division Bench of this Court consisting of two of us (the Chief

                         Justice of India and L. Nageswara Rao, J.) decided to examine

                         the reasons for the delay in disposal of these cases.      The

                         Registry was directed to register a Suo Motu Writ Petition

                         (Criminal) captioned as “Expeditious Trial of Cases under

                         Section 138 of N.I. Act 1881”.     Mr. Sidharth Luthra, learned

                         Senior Counsel was appointed as Amicus Curiae and Mr. K.
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.04.16
17:18:05 IST
Reason:
                         Parameshwar, learned Counsel was requested to assist him.




                                                                               1 | Page
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. that 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

2|Page
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 141 pertains to offences by

companies. Section 142 lays down conditions under which

cognizance of offences may be taken under Section 138. Over

the years, courts were inundated with complaints filed under

3|Page
Section 138 of the Act which could not be decided within a

reasonable period and remained pending for a number of

years.

4. This gargantuan pendency of complaints filed under

Section 138 of the Act has had an adverse effect in disposal of

other criminal cases. There was an imminent need for

remedying the situation which was addressed by the

Negotiable Instruments (Amendment and Miscellaneous

Provisions) Act, 2002. Sections 143 to 147 were inserted in the

Act, which came into force on 06.02.2003. Section 143 of the

Act empowers the court to try complaints filed under Section

138 of the Act summarily, notwithstanding anything contained

in the Code of Criminal Procedure, 1973 (hereinafter, ‘the

Code’). Sub-section (3) of Section 143 stipulates that an

endeavour be made to conclude the trial within six months

from the date of filing of the complaint. Section 144 deals with

the mode of service of summons. Section 145 postulates that

the evidence of the complainant given by him 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

4|Page
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 which we shall 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:

5|Page

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

India were directed to submit their responses to the

suggestions made by the learned Amici Curiae on these

6|Page
aspects. After hearing the learned Solicitor General of India

and Mr. Ramesh Babu, learned counsel for the Reserve Bank of

India, on 10.03.2021, it was considered appropriate by this

Court to form a Committee with Hon’ble Mr. Justice R.C.

Chavan, former Judge of the Bombay High Court, as the

Chairman to consider various suggestions that are made for

arresting the explosion of the judicial docket. The

recommendations made by the learned Amici Curiae relating to

attachment of bank accounts to the extent of the cheque

amount, pre-summons mediation and all other issues which are

part of the preliminary note and the written submissions of the

learned Amici Curiae shall be considered by the

aforementioned Committee, in addition to other related issues

which may arise during such consideration. The Committee is

directed to deliberate on the need for creation of additional

courts to try complaints under Section 138 of the Act.

MECHANICAL CONVERSION OF SUMMARY TRIAL TO
SUMMONS TRIAL

8. The learned Amici Curiae submitted that Section 143 of

the Act provides that Sections 262 to 265 of the Code shall

apply for the trial of all offences under Chapter XVII of the Act.

7|Page
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 a judgment, containing a

brief statement of reasons for his findings. There is a

restriction that the procedure for summary trials under Section

8|Page
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 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

9|Page
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 UNDER SECTION 202 OF THE CODE IN RELATION
TO SECTION 145 OF THE ACT

10. Section 202 of the Code confers jurisdiction on the

Magistrate to conduct an inquiry for the purpose of deciding

whether sufficient grounds justifying the issue of process are

made out. The amendment to Section 202 of the Code with

effect from 23.06.2006, vide Act 25 of 2005, made it

mandatory for the Magistrate to conduct an 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.1, Abhijit Pawar v. Hemant
1 (2014) 14 SCC 638

10 | P a g e
Madhukar Nimbalkar and Anr.2 and Birla Corporation

Limited v. Adventz Investments and Holdings Limited &

Ors.3). 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 be obtained from materials available on record.

11. The learned Amici Curiae referred to a judgment of this

Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr. 4

where there was a discussion about the requirement of inquiry

2 (2017) 3 SCC 528
3 (2019) 16 SCC 610
4 (2016) 11 SCC 105

11 | P a g e
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 affidavit,

which shall be read in evidence in any inquiry, trial or other

proceeding, notwithstanding anything contained in the Code.

Section 145 (2) of the Act enables the court to summon and

examine any person giving evidence on affidavit as to the facts

12 | P a g e
contained therein, on an application of the prosecution or the

accused. It is contended by the learned Amici Curiae that

though there is no specific provision permitting the examination

of witnesses on affidavit, Section 145 permits the complainant

to be examined by way of an affidavit for the purpose of inquiry

under Section 202. He suggested that Section 202 (2) should

be read along with Section 145 and in respect of complaints

under Section 138, the examination of witnesses also should be

permitted on affidavit. Only in exceptional cases, the

Magistrate may examine the witnesses personally. Section 145

of the Act is an exception to Section 202 in respect of

examination of the complainant by way of an affidavit. There

is no specific provision in relation to examination of the

witnesses also on affidavit in Section 145. It becomes clear

that Section 145 had been inserted in the Act, with effect from

the 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

13 | P a g e
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 and tried at one trial, according to Section

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

14 | P a g e
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.5 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.6 needs clarification. In Vani Agro (supra), this Court was

dealing with the dishonour of four cheques which was the

subject matter of four complaints. The question raised therein

related to the consolidation of all the four cases. As only three

cases can be tried together as per Section 219 of the Code, this

Court directed the Trial Court to fix all the four cases on one

date. The course adopted by this Court in Vani Agro (supra) is

appropriate in view of the mandate of Section 219 of the Code.

Hence, there is no need for any clarification, especially in view

5 (2000) 1 SCC 285
6 2019 (10) SCJ 238

15 | P a g e
of the submission made by the learned Amici that Section 219

be amended suitably. We find force in the submission of the

learned Amici Curiae that one trial for more than three offences

of the same kind within the space of 12 months in respect of

complaints under Section 138 can only be by an amendment.

To reduce the burden on the docket of the criminal courts, we

recommend that a provision be made in the Act to the effect

that a person can be tried in one trial for offences of the same

kind under Section 138 in the space of 12 months,

notwithstanding the restriction in Section 219 of the Code.

15. Offences that are committed as part of the same

transaction can 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

16 | P a g e
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 transaction7. There is no ambiguity in Section 220 in

accordance 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
7 State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., (1964) 3 SCR 297

17 | P a g e
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. 8, this Court

dealt with the power of the Magistrate under Chapter XX of the

Code after the accused enters appearance in response to the

summons issued under Section 204 of the Code. It was held

that the accused can plead before the Magistrate that the

process against him ought not to have been issued and the

Magistrate may drop the proceedings if he is satisfied on

reconsideration of the complaint that there is no offence for

which the accused could be tried. This Court was of the opinion

that there is no requirement of a specific provision for the

Magistrate to drop the proceedings and as the order issuing the

process is an interim order and not a judgment, it can be varied

or recalled. The observation in the case of K. M. Mathew

(supra) that no specific provision of law is required for recalling
8 (1992) 1 SCC 217

18 | P a g e
an erroneous order of issue of process was held to be contrary

to the scheme of the Code in Adalat Prasad v. Rooplal

Jindal and Others9. It was observed therein that the order

taking cognizance can only be subject matter of a proceeding

under Section 482 of the Code as subordinate criminal courts

have no inherent power. There is also no power of 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.10. 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

9 (2004) 7 SCC 338
10 (2004) 13 SCC 324

19 | P a g e
Instruments Private Limited and Another v. Kanchan

Mehta11 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 conclusion, the
said judgment was rendered as per statutory
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 case, even though strictly speaking is not
applicable to complaint cases, since the provisions of
CrPC are applicable “so far as may be”, the principle
of the said provision is applicable to a complaint case
covered by Section 143 of the Act which
contemplates applicability of summary trial
provisions, as far as possible i.e. with such deviation
as may be necessary for speedy trial in the context.”

11 (2018) 1 SCC 560

20 | P a g e

19. In Meters and Instruments (supra), this Court was of

the opinion that 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. On that

analogy, it was held that apart from compounding by the

consent of the parties, the Trial Court has the jurisdiction to

pass appropriate orders under Section 143 in exercise of its

inherent power. Reliance was placed by this Court on Section

258 of the Code to empower the Trial Courts to pass suitable

orders.

20. Section 143 of the Act mandates that the provisions of

summary trial of the Code shall apply “as far as may be” to

trials of complaints under Section 138. Section 258 of the Code

empowers 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

21 | P a g e
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 12. The Judge’s duty is to

interpret and apply the law, not to change it to meet the

Judge’s idea of what justice requires 13. The court cannot add

words to a statute or read words into it which are not there14.

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

12 J. Frankfurter, “Of Law and Men: Papers and Addresses of Felix Frankfurter”.
13 Dupont Steels Ltd. v. Sirs (1980) 1 All ER 529 (HL)
14 Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323

22 | P a g e
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 the order of issue of process if he has no

jurisdiction to try the case. We are in agreement with the

learned Amici Curiae that in case the Trial Court is informed

that it lacks jurisdiction to issue process for complaints under

Section 138 of the Act, the proceedings shall be stayed and the

case shall be submitted to the Chief Judicial Magistrate or such

other Magistrate having jurisdiction.

23. Though we have referred all the other issues which are

not decided herein to the Committee appointed by this Court

on 10.03.2021, it is necessary to deal with the complaints

under Section 138 pending in Appellate Courts, High Courts and

23 | P a g e
in this Court. We are informed by the learned Amici Curiae that

cases pending at the appellate stage and before the High

Courts and this Court can be settled through mediation. We

request the High Courts to identify the pending revisions arising

out of complaints filed under Section 138 of the Act and refer

them to mediation at the earliest. The Courts before which

appeals against judgments in complaints under Section 138 of

the Act are pending should be directed to make an effort to

settle the 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.

24 | P a g e

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

summons in one complaint under Section 138 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.

6) Judgments of this Court in Adalat Prasad (supra) and

Subramanium Sethuraman (supra) have interpreted

25 | P a g e
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

subject matter of deliberation by the aforementioned

Committee. Any other issue relating to expeditious

26 | P a g e
disposal of complaints under Section 138 of the Act

shall also be considered by the Committee.

25. List the matter after eight weeks. Further hearing in this

matter will be before 3-Judges Bench.

26. We place on record our appreciation for the valuable

assistance rendered by Mr. Sidharth Luthra, learned Senior

Counsel and Mr. K. Parameshwar, learned Counsel, as Amici

Curiae.

………………….CJI.

[ S. A. BOBDE ]

…………………………….J.
[ L. NAGESWARA RAO ]

……………………J.

[B. R. GAVAI ]

……………………….J.

[ A. S. BOPANNA ]

………………………………J.

[ S. RAVINDRA BHAT ]

New Delhi,
April 16, 2021

27 | P a g e



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