REPORTABLE
\nIN THE SUPREME COURT OF INDIA
\nCRIMINAL ORIGINAL JURISDICTION
\nSUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020
\nIn Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION
\n138 OF N.I. ACT 1881.
\nO R D E R
\n1. Special Leave Petition (Criminal) No. 5464 of 2016
\npertains to dishonour of two cheques on 27.01.2005 for an
\namount of Rs.1,70,000\/-. The dispute has remained pending
\nfor the past 16 years. Concerned with the large number of
\ncases filed under Section 138 of the Negotiable Instruments
\nAct, 1881 (hereinafter ‘the Act’) pending at various levels, a
\nDivision Bench of this Court consisting of two of us (the Chief
\nJustice of India and L. Nageswara Rao, J.) decided to examine
\nthe reasons for the delay in disposal of these cases. The
\nRegistry was directed to register a Suo Motu Writ Petition
\n(Criminal) captioned as \u201cExpeditious Trial of Cases under
\nSection 138 of N.I. Act 1881\u201d. Mr. Sidharth Luthra, learned
\nSenior Counsel was appointed as Amicus Curiae and Mr. K.
\nParameshwar, learned Counsel was requested to assist him.
\n1 | P a g e
\nNotices were issued to the Union of India, Registrar Generals of
\nthe High Courts, Director Generals of Police of the States and
\nUnion Territories, Member Secretary of the National Legal
\nServices Authority, Reserve Bank of India and Indian Banks\u2019
\nAssociation, Mumbai as the representative of banking
\ninstitutions.
\n2. The learned Amici Curiae submitted a preliminary report
\non 11.10.2020 which was circulated to all the Respondents. On
\n19.01.2021, the learned Amici Curiae informed this Court that
\nonly 14 out of 25 High Courts had submitted their responses to
\nthe preliminary report. The Reserve Bank of India had also filed
\nits suggestions. Seven Directors General of Police had filed
\ntheir affidavits putting forward their views to the preliminary
\nreport. The parties who had not filed their responses were
\ngranted further time and the matter was listed on 24.02.2021
\nfor final disposal. During the course of the hearing, it was felt
\nby a Bench of three Judges, consisting of the Chief Justice of
\nIndia, L. Nageswara Rao, J. and S. Ravindra Bhat, J. that the
\nmatter had to be considered by a larger bench in view of the
\nimportant issues that arose for determination before this Court.
\nThe reference of the matter to a larger bench was also
\n2 | P a g e
\nnecessitated due to the submission made by the learned Amici
\nCuriae that certain judicial pronouncements of this Court
\nneeded clarification. We have heard learned Amici Curiae,
\nAdvocates for some States, the learned Solicitor General of
\nIndia, Mr. Vikramjit Banerjee, learned Additional Solicitor
\nGeneral of India, Mr. Ramesh Babu, Advocate for the Reserve
\nBank of India and Dr. Lalit Bhasin, Advocate for the Indian
\nBanks\u2019 Association.
\n3. Chapter XVII inserted in the Act, containing Sections 138
\nto 142, came into force on 01.04.1989. Dishonour of cheques
\nfor insufficiency of funds was made punishable with
\nimprisonment for a term of one year or with fine which may
\nextend to twice the amount of the cheque as per Section 138.
\nSection 139 dealt with the presumption in favour of the holder
\nthat the cheque received was for the discharge, in whole or in
\npart, of any debt or other liability. The defence which may not
\nbe allowed in a prosecution under Section 138 of the Act is
\ngoverned by Section 140. Section 141 pertains to offences by
\ncompanies. Section 142 lays down conditions under which
\ncognizance of offences may be taken under Section 138. Over
\nthe years, courts were inundated with complaints filed under
\n3 | P a g e
\nSection 138 of the Act which could not be decided within a
\nreasonable period and remained pending for a number of
\nyears.
\n4. This gargantuan pendency of complaints filed under
\nSection 138 of the Act has had an adverse effect in disposal of
\nother criminal cases. There was an imminent need for
\nremedying the situation which was addressed by the
\nNegotiable Instruments (Amendment and Miscellaneous
\nProvisions) Act, 2002. Sections 143 to 147 were inserted in the
\nAct, which came into force on 06.02.2003. Section 143 of the
\nAct empowers the court to try complaints filed under Section
\n138 of the Act summarily, notwithstanding anything contained
\nin the Code of Criminal Procedure, 1973 (hereinafter, \u2018the
\nCode\u2019). Sub-section (3) of Section 143 stipulates that an
\nendeavour be made to conclude the trial within six months
\nfrom the date of filing of the complaint. Section 144 deals with
\nthe mode of service of summons. Section 145 postulates that
\nthe evidence of the complainant given by him on affidavit may
\nbe read as evidence in any inquiry, trial or other proceeding
\nunder the Code. Bank\u2019s slip or memo denoting that the cheque
\nhas been dishonoured is presumed to be prima facie evidence
\n4 | P a g e
\nof the fact of dishonour of the cheque, according to Section
\n146. Section 147 makes offences punishable under the Act
\ncompoundable. The punishment prescribed under the Act was
\nenhanced from one year to two years, along with other
\namendments made to Sections 138 to 142 with which we are
\nnot concerned in this case.
\n5. The situation has not improved as courts continue to
\nstruggle with the humongous pendency of complaints under
\nSection 138 of the Act. The preliminary report submitted by
\nthe learned Amici Curiae shows that as on 31.12.2019, the total
\nnumber of criminal cases pending was 2.31 crores, out of which
\n35.16 lakh pertained to Section 138 of the Act. The reasons
\nfor the backlog of cases, according to the learned Amici Curiae,
\nis that while there is a steady increase in the institution of
\ncomplaints every year, the rate of disposal does not match the
\nrate of institution of complaints. Delay in disposal of the
\ncomplaints under Section 138 of the Act has been due to
\nreasons which we shall deal with in this order.
\n6. The learned Amici Curiae identified seven major issues
\nfrom the responses filed by the State Governments and Union
\nTerritories which are as under:
\n5 | P a g e
\na) Service of summons
\nb) Statutory amendment to Section 219 of the Code
\nc) Summary trials
\nd) Attachment of bank accounts
\ne) Applicability of Section 202 of the Code
\nf) Mediation
\ng) Inherent jurisdiction of the Magistrate
\n7. Service of summons on the accused in a complaint filed
\nunder Section 138 of the Act has been one of the main reasons
\nfor the delay in disposal of the complaints. After examining
\nthe responses of the various State Governments and Union
\nTerritories, several suggestions have been given by the learned
\nAmici Curiae for speeding up the service of summons. Some of
\nthe suggestions given by him pertain to dishonour slips issued
\nby the bank under Section 146 of the Act, disclosing the current
\nmobile number, email address and postal address of the drawer
\nof the cheque, the details of the drawer being given on the
\ncheque leaf, creation of a Nodal Agency for electronic service of
\nsummons and generation of a unique number from the
\ndishonour memo. The Union of India and the Reserve Bank of
\nIndia were directed to submit their responses to the
\nsuggestions made by the learned Amici Curiae on these
\n6 | P a g e
\naspects. After hearing the learned Solicitor General of India
\nand Mr. Ramesh Babu, learned counsel for the Reserve Bank of
\nIndia, on 10.03.2021, it was considered appropriate by this
\nCourt to form a Committee with Hon\u2019ble Mr. Justice R.C.
\nChavan, former Judge of the Bombay High Court, as the
\nChairman to consider various suggestions that are made for
\narresting the explosion of the judicial docket. The
\nrecommendations made by the learned Amici Curiae relating to
\nattachment of bank accounts to the extent of the cheque
\namount, pre-summons mediation and all other issues which are
\npart of the preliminary note and the written submissions of the
\nlearned Amici Curiae shall be considered by the
\naforementioned Committee, in addition to other related issues
\nwhich may arise during such consideration. The Committee is
\ndirected to deliberate on the need for creation of additional
\ncourts to try complaints under Section 138 of the Act.
\nMECHANICAL CONVERSION OF SUMMARY TRIAL TO
\nSUMMONS TRIAL
\n8. The learned Amici Curiae submitted that Section 143 of
\nthe Act provides that Sections 262 to 265 of the Code shall
\napply for the trial of all offences under Chapter XVII of the Act.
\n7 | P a g e
\nThe second proviso empowers the Magistrate to convert the
\nsummary trial to summons trial, if he is of the opinion that a
\nsentence of imprisonment exceeding one year may have to be
\npassed or that it is undesirable to try the case summarily, after
\nrecording reasons. The learned Amici Curiae has brought to
\nthe notice of this Court that summary trials are routinely
\nconverted to summons trials in a mechanical manner. The
\nsuggestions made by him in his preliminary note that the High
\nCourts should issue practice directions to the Trial Courts for
\nrecording cogent and sufficient reasons before converting a
\nsummary trial to summons trial have been accepted by the
\nHigh Courts.
\n9. Section 143 of the Act has been introduced in the year
\n2002 as a step-in aid for quick disposal of complaints filed
\nunder Section 138 of the Act. At this stage, it is necessary to
\nrefer to Chapter XXI of the Code which deals with summary
\ntrials. In a case tried summarily in which the accused does not
\nplead guilty, it is sufficient for the Magistrate to record the
\nsubstance of the evidence and deliver a judgment, containing a
\nbrief statement of reasons for his findings. There is a
\nrestriction that the procedure for summary trials under Section
\n8 | P a g e
\n262 is not to be applied for any sentence of imprisonment
\nexceeding three months. However, Sections 262 to 265 of the
\nCode were made applicable \u201cas far as may be\u201d for trial of an
\noffence under Chapter XVII of the Act, notwithstanding anything
\ncontained in the Code. It is only in a case where the Magistrate
\nis of the opinion that it may be necessary to sentence the
\naccused for a term exceeding one year that the complaint shall
\nbe tried as a summons trial. From the responses of various
\nHigh Courts, it is clear that the conversion by the Trial Courts of
\ncomplaints under Section 138 from summary trial to summons
\ntrial is being done mechanically without reasons being
\nrecorded. The result of such conversion of complaints under
\nSection 138 from summary trial to summons trial has been
\ncontributing to the delay in disposal of the cases. Further, the
\nsecond proviso to Section 143 mandates that the Magistrate
\nhas to record an order spelling out the reasons for such
\nconversion. The object of Section 143 of the Act is quick
\ndisposal of the complaints under Section 138 by following the
\nprocedure prescribed for summary trial under the Code, to the
\nextent possible. The discretion conferred on the Magistrate by
\nthe second proviso to Section 143 is to be exercised with due
\ncare and caution, after recording reasons for converting the
\n9 | P a g e
\ntrial of the complaint from summary trial to summons trial.
\nOtherwise, the purpose for which Section 143 of the Act has
\nbeen introduced would be defeated. We accept the
\nsuggestions made by the learned Amici Curiae in consultation
\nwith the High Courts. The High Courts may issue practice
\ndirections to the Magistrates to record reasons before
\nconverting trial of complaints under Section 138 from summary
\ntrial to summons trial in exercise of power under the second
\nproviso to Section 143 of the Act.
\nINQUIRY UNDER SECTION 202 OF THE CODE IN RELATION
\nTO SECTION 145 OF THE ACT
\n10. Section 202 of the Code confers jurisdiction on the
\nMagistrate to conduct an inquiry for the purpose of deciding
\nwhether sufficient grounds justifying the issue of process are
\nmade out. The amendment to Section 202 of the Code with
\neffect from 23.06.2006, vide Act 25 of 2005, made it
\nmandatory for the Magistrate to conduct an inquiry before issue
\nof process, in a case where the accused resides beyond the
\narea of jurisdiction of the court. (See: Vijay Dhanuka & Ors.
\nv. Najima Mamtaj & Ors.1, Abhijit Pawar v. Hemant
\n1 (2014) 14 SCC 638
\n10 | P a g e
\nMadhukar Nimbalkar and Anr.2 and Birla Corporation
\nLimited v. Adventz Investments and Holdings Limited &
\nOrs.3). There has been a divergence of opinion amongst the
\nHigh Courts relating to the applicability of Section 202 in
\nrespect of complaints filed under Section 138 of the Act.
\nCertain cases under Section 138 have been decided by the
\nHigh Courts upholding the view that it is mandatory for the
\nMagistrate to conduct an inquiry, as provided in Section 202 of
\nthe Code, before issuance of process in complaints filed under
\nSection 138. Contrary views have been expressed in some
\nother cases. It has been held that merely because the accused
\nis residing outside the jurisdiction of the court, it is not
\nnecessary for the Magistrate to postpone the issuance of
\nprocess in each and every case. Further, it has also been held
\nthat not conducting inquiry under Section 202 of the Code
\nwould not vitiate the issuance of process, if requisite
\nsatisfaction can be obtained from materials available on record.
\n11. The learned Amici Curiae referred to a judgment of this
\nCourt in K.S. Joseph v. Philips Carbon Black Ltd & Anr.4
\nwhere there was a discussion about the requirement of inquiry
\n2 (2017) 3 SCC 528
\n3 (2019) 16 SCC 610
\n4 (2016) 11 SCC 105
\n11 | P a g e
\nunder Section 202 of the Code in relation to complaints filed
\nunder Section 138 but the question of law was left open. In
\nview of the judgments of this Court in Vijay Dhanuka (supra),
\nAbhijit Pawar (supra) and Birla Corporation (supra), the
\ninquiry to be held by the Magistrate before issuance of
\nsummons to the accused residing outside the jurisdiction of the
\ncourt cannot be dispensed with. The learned Amici Curiae
\nrecommended that the Magistrate should come to a conclusion
\nafter holding an inquiry that there are sufficient grounds to
\nproceed against the accused. We are in agreement with the
\nlearned Amici.
\n12. Another point that has been brought to our notice relates
\nto the interpretation of Section 202 (2) which stipulates that the
\nMagistrate shall take evidence of the witness on oath in an
\ninquiry conducted under Section 202 (1) for the purpose of
\nissuance of process. Section 145 of the Act provides that the
\nevidence of the complainant may be given by him on affidavit,
\nwhich shall be read in evidence in any inquiry, trial or other
\nproceeding, notwithstanding anything contained in the Code.
\nSection 145 (2) of the Act enables the court to summon and
\nexamine any person giving evidence on affidavit as to the facts
\n12 | P a g e
\ncontained therein, on an application of the prosecution or the
\naccused. It is contended by the learned Amici Curiae that
\nthough there is no specific provision permitting the examination
\nof witnesses on affidavit, Section 145 permits the complainant
\nto be examined by way of an affidavit for the purpose of inquiry
\nunder Section 202. He suggested that Section 202 (2) should
\nbe read along with Section 145 and in respect of complaints
\nunder Section 138, the examination of witnesses also should be
\npermitted on affidavit. Only in exceptional cases, the
\nMagistrate may examine the witnesses personally. Section 145
\nof the Act is an exception to Section 202 in respect of
\nexamination of the complainant by way of an affidavit. There
\nis no specific provision in relation to examination of the
\nwitnesses also on affidavit in Section 145. It becomes clear
\nthat Section 145 had been inserted in the Act, with effect from
\nthe year 2003, with the laudable object of speeding up trials in
\ncomplaints filed under Section 138. If the evidence of the
\ncomplainant may be given by him on affidavit, there is no
\nreason for insisting on the evidence of the witnesses to be
\ntaken on oath. On a holistic reading of Section 145 along with
\nSection 202, we hold that Section 202 (2) of the Code is
\ninapplicable to complaints under Section 138 in respect of
\n13 | P a g e
\nexamination of witnesses on oath. The evidence of witnesses
\non behalf of the complainant shall be permitted on affidavit. If
\nthe Magistrate holds an inquiry himself, it is not compulsory
\nthat he should examine witnesses. In suitable cases, the
\nMagistrate can examine documents for satisfaction as to the
\nsufficiency of grounds for proceeding under Section 202.
\nSECTIONS 219 AND 220 OF THE CODE
\n13. Section 219 of the Code provides that when a person is
\naccused of more offences than one, of the same kind,
\ncommitted within a space of 12 months, he may be tried at one
\ntrial for a maximum of three such offences. If more than one
\noffence is committed by the same person in one series of acts
\nso committed together as to form the same transaction, he
\nmay be charged with and tried at one trial, according to Section
\n220. In his preliminary report, the learned Amici Curiae
\nsuggested that a legislative amendment is required to Section
\n219 of the Code to avoid multiplicity of proceedings where
\ncheques have been issued for one purpose. In so far as
\nSection 220 of the Code is concerned, the learned Amici Curiae
\nsubmitted that same\/similar offences as part of the same
\ntransaction in one series of acts may be the subject matter of
\n14 | P a g e
\none trial. It was argued by the learned Amici Curiae that
\nSection 220 (1) of the Code is not controlled by Section 219 and
\neven if the offences are more than three in respect of the same
\ntransaction, there can be a joint trial. Reliance was placed on
\na judgment of this Court in Balbir v. State of Haryana &
\nAnr.5 to contend that all offences alleged to have been
\ncommitted by the accused as a part of the same transaction
\ncan be tried together in one trial, even if those offences may
\nhave been committed as a part of a larger conspiracy.
\n14. The learned Amici Curiae pointed out that the judgment of
\nthis Court in Vani Agro Enterprises v. State of Gujarat &
\nOrs.6 needs clarification. In Vani Agro (supra), this Court was
\ndealing with the dishonour of four cheques which was the
\nsubject matter of four complaints. The question raised therein
\nrelated to the consolidation of all the four cases. As only three
\ncases can be tried together as per Section 219 of the Code, this
\nCourt directed the Trial Court to fix all the four cases on one
\ndate. The course adopted by this Court in Vani Agro (supra) is
\nappropriate in view of the mandate of Section 219 of the Code.
\nHence, there is no need for any clarification, especially in view
\n5 (2000) 1 SCC 285
\n6 2019 (10) SCJ 238
\n15 | P a g e
\nof the submission made by the learned Amici that Section 219
\nbe amended suitably. We find force in the submission of the
\nlearned Amici Curiae that one trial for more than three offences
\nof the same kind within the space of 12 months in respect of
\ncomplaints under Section 138 can only be by an amendment.
\nTo reduce the burden on the docket of the criminal courts, we
\nrecommend that a provision be made in the Act to the effect
\nthat a person can be tried in one trial for offences of the same
\nkind under Section 138 in the space of 12 months,
\nnotwithstanding the restriction in Section 219 of the Code.
\n15. Offences that are committed as part of the same
\ntransaction can be tried jointly as per Section 220 of the Code.
\nWhat is meant by \u201csame transaction\u201d is not defined anywhere
\nin the Code. Indeed, it would always be difficult to define
\nprecisely what the expression means. Whether a transaction
\ncan be regarded as the same would necessarily depend upon
\nthe particular facts of each case and it seems to us to be a
\ndifficult task to undertake a definition of that which the
\nLegislature has deliberately left undefined. We have not come
\nacross a single decision of any court which has embarked upon
\nthe difficult task of defining the expression. But it is generally
\n16 | P a g e
\nthought that where there is proximity of time or place or unity
\nof purpose and design or continuity of action in respect of a
\nseries of acts, it may be possible to infer that they form part of
\nthe same transaction. It is, however, not necessary that every
\none of these elements should co-exist for a transaction to be
\nregarded as the same. But if several acts committed by a
\nperson show a unity of purpose or design that would be a
\nstrong circumstance to indicate that those acts form part of the
\nsame transaction7. There is no ambiguity in Section 220 in
\naccordance with which several cheques issued as a part of the
\nsame transaction can be the subject matter of one trial.
\n16. The learned Amici Curiae have brought to our notice that
\nseparate complaints are filed under Section 138 of the Act for
\ndishonour of cheques which are part of the same transaction.
\nUndue delay in service of summons is the main cause for the
\ndisproportionate accumulation of complaints under Section 138
\nbefore the courts. The learned Amici suggested that one way
\nof reducing the time spent on service of summons is to treat
\nservice of summons served in one complaint pertaining to a
\ntransaction as deemed service for all complaints in relation to
\nthe said transaction. We are in agreement with the suggestion
\n7 State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., (1964) 3 SCR 297
\n17 | P a g e
\nmade by the learned Amici Curiae. Accordingly, the High
\nCourts are requested to issue practice directions to the Trial
\nCourts to treat service of summons in one complaint forming
\npart of a transaction, as deemed service in respect of all the
\ncomplaints filed before the same court relating to dishonour of
\ncheques issued as part of the said transaction.
\nINHERENT POWERS OF THE MAGISTRATE
\n17. In K. M. Mathew v. State of Kerala & Anr.8, this Court
\ndealt with the power of the Magistrate under Chapter XX of the
\nCode after the accused enters appearance in response to the
\nsummons issued under Section 204 of the Code. It was held
\nthat the accused can plead before the Magistrate that the
\nprocess against him ought not to have been issued and the
\nMagistrate may drop the proceedings if he is satisfied on
\nreconsideration of the complaint that there is no offence for
\nwhich the accused could be tried. This Court was of the opinion
\nthat there is no requirement of a specific provision for the
\nMagistrate to drop the proceedings and as the order issuing the
\nprocess is an interim order and not a judgment, it can be varied
\nor recalled. The observation in the case of K. M. Mathew
\n(supra) that no specific provision of law is required for recalling
\n8 (1992) 1 SCC 217
\n18 | P a g e
\nan erroneous order of issue of process was held to be contrary
\nto the scheme of the Code in Adalat Prasad v. Rooplal
\nJindal and Others9. It was observed therein that the order
\ntaking cognizance can only be subject matter of a proceeding
\nunder Section 482 of the Code as subordinate criminal courts
\nhave no inherent power. There is also no power of review
\nconferred on the Trial Courts by the Code. As there is no
\nspecific provision for recalling an erroneous order by the Trial
\nCourt, the judgment in the case of K. M. Mathew (supra) was
\nheld to be not laying down correct law. The question whether a
\nperson can seek discharge in a summons case was considered
\nby this Court in Subramanium Sethuraman v. State of
\nMaharashtra & Anr.10. The law laid down in Adalat Prasad
\n(supra) was reiterated.
\n18. It was contended by learned Amici Curiae that a holistic
\nreading of Sections 251 and 258 of the Code, along with
\nSection 143 of the Act, should be considered to confer a power
\nof review or recall of the issuance of process by the Trial Court
\nin relation to complaints filed under Section 138 of the Act. He
\nreferred to a judgment of this Court in Meters and
\n9 (2004) 7 SCC 338
\n10 (2004) 13 SCC 324
\n19 | P a g e
\nInstruments Private Limited and Another v. Kanchan
\nMehta11 which reads as follows:
\n\u201cWhile it is true that in Subramanium
\nSethuraman v. State of Maharashtra this Court
\nobserved that once the plea of the accused is
\nrecorded under Section 252 CrPC, the procedure
\ncontemplated under Chapter XX CrPC has to be
\nfollowed to take the trial to its logical conclusion, the
\nsaid judgment was rendered as per statutory
\nprovisions prior to the 2002 Amendment. The
\nstatutory scheme post-2002 Amendment as
\nconsidered in Mandvi Coop. Bank and J.V.
\nBaharuni has brought about a change in law and it
\nneeds to be recognised. After the 2002 Amendment,
\nSection 143 of the Act confers implied power on the
\nMagistrate to discharge the accused if the
\ncomplainant is compensated to the satisfaction of the
\ncourt, where the accused tenders the cheque amount
\nwith interest and reasonable cost of litigation as
\nassessed by the court. Such an interpretation was
\nconsistent with the intention of legislature. The court
\nhas to balance the rights of the complainant and the
\naccused and also to enhance access to justice. Basic
\nobject of the law is to enhance credibility of the
\ncheque transactions by providing speedy remedy to
\nthe complainant without intending to punish the
\ndrawer of the cheque whose conduct is reasonable or
\nwhere compensation to the complainant meets the
\nends of justice. Appropriate order can be passed by
\nthe court in exercise of its inherent power under
\nSection 143 of the Act which is different from
\ncompounding by consent of parties. Thus, Section
\n258 CrPC which enables proceedings to be stopped in
\na summons case, even though strictly speaking is not
\napplicable to complaint cases, since the provisions of
\nCrPC are applicable \u201cso far as may be\u201d, the principle
\nof the said provision is applicable to a complaint case
\ncovered by Section 143 of the Act which
\ncontemplates applicability of summary trial
\nprovisions, as far as possible i.e. with such deviation
\nas may be necessary for speedy trial in the context.\u201d
\n11 (2018) 1 SCC 560
\n20 | P a g e
\n19. In Meters and Instruments (supra), this Court was of
\nthe opinion that Section 143 of the Act confers implied power
\non the Magistrate to discharge the accused, if the complainant
\nis compensated to the satisfaction of the court. On that
\nanalogy, it was held that apart from compounding by the
\nconsent of the parties, the Trial Court has the jurisdiction to
\npass appropriate orders under Section 143 in exercise of its
\ninherent power. Reliance was placed by this Court on Section
\n258 of the Code to empower the Trial Courts to pass suitable
\norders.
\n20. Section 143 of the Act mandates that the provisions of
\nsummary trial of the Code shall apply \u201cas far as may be\u201d to
\ntrials of complaints under Section 138. Section 258 of the Code
\nempowers the Magistrate to stop the proceedings at any stage
\nfor reasons to be recorded in writing and pronounce a judgment
\nof acquittal in any summons case instituted otherwise than
\nupon complaint. Section 258 of the Code is not applicable to a
\nsummons case instituted on a complaint. Therefore, Section
\n258 cannot come into play in respect of the complaints filed
\nunder Section 138 of the Act. The judgment of this Court in
\nMeters and Instruments (supra) in so far as it conferred
\n21 | P a g e
\npower on the Trial Court to discharge an accused is not good
\nlaw. Support taken from the words \u201cas far as may be\u201d in
\nSection 143 of the Act is inappropriate. The words \u201cas far as
\nmay be\u201d in Section 143 are used only in respect of applicability
\nof Sections 262 to 265 of the Code and the summary procedure
\nto be followed for trials under Chapter XVII. Conferring power
\non the court by reading certain words into provisions is
\nimpermissible. A judge must not rewrite a statute, neither to
\nenlarge nor to contract it. Whatever temptations the
\nstatesmanship of policy-making might wisely suggest,
\nconstruction must eschew interpolation and evisceration. He
\nmust not read in by way of creation12. The Judge\u2019s duty is to
\ninterpret and apply the law, not to change it to meet the
\nJudge\u2019s idea of what justice requires13. The court cannot add
\nwords to a statute or read words into it which are not there14.
\n21. A close scrutiny of the judgments of this Court in Adalat
\nPrasad (supra) and Subramanium Sethuraman (supra)
\nwould show that they do not warrant any reconsideration. The
\nTrial Court cannot be conferred with inherent power either to
\nreview or recall the order of issuance of process. As held
\n12 J. Frankfurter, \u201cOf Law and Men: Papers and Addresses of Felix Frankfurter\u201d.
\n13 Dupont Steels Ltd. v. Sirs (1980) 1 All ER 529 (HL)
\n14 Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323
\n22 | P a g e
\nabove, this Court, in its anxiety to cut down delays in the
\ndisposal of complaints under Section 138, has applied Section
\n258 to hold that the Trial Court has the power to discharge the
\naccused even for reasons other than payment of compensation.
\nHowever, amendment to the Act empowering the Trial Court to
\nreconsider\/recall summons may be considered on the
\nrecommendation of the Committee constituted by this Court
\nwhich shall look into this aspect as well.
\n22. Another submission made by the learned Amici Curiae
\nrelates to the power of the Magistrate under Section 322 of the
\nCode, to revisit the order of issue of process if he has no
\njurisdiction to try the case. We are in agreement with the
\nlearned Amici Curiae that in case the Trial Court is informed
\nthat it lacks jurisdiction to issue process for complaints under
\nSection 138 of the Act, the proceedings shall be stayed and the
\ncase shall be submitted to the Chief Judicial Magistrate or such
\nother Magistrate having jurisdiction.
\n23. Though we have referred all the other issues which are
\nnot decided herein to the Committee appointed by this Court
\non 10.03.2021, it is necessary to deal with the complaints
\nunder Section 138 pending in Appellate Courts, High Courts and
\n23 | P a g e
\nin this Court. We are informed by the learned Amici Curiae that
\ncases pending at the appellate stage and before the High
\nCourts and this Court can be settled through mediation. We
\nrequest the High Courts to identify the pending revisions arising
\nout of complaints filed under Section 138 of the Act and refer
\nthem to mediation at the earliest. The Courts before which
\nappeals against judgments in complaints under Section 138 of
\nthe Act are pending should be directed to make an effort to
\nsettle the disputes through mediation.
\n24. The upshot of the above discussion leads us to the
\nfollowing conclusions:
\n1) The High Courts are requested to issue practice
\ndirections to the Magistrates to record reasons before
\nconverting trial of complaints under Section 138 of the
\nAct from summary trial to summons trial.
\n2) Inquiry shall be conducted on receipt of complaints
\nunder Section 138 of the Act to arrive at sufficient
\ngrounds to proceed against the accused, when such
\naccused resides beyond the territorial jurisdiction of
\nthe court.
\n24 | P a g e
\n3) For the conduct of inquiry under Section 202 of the
\nCode, evidence of witnesses on behalf of the
\ncomplainant shall be permitted to be taken on
\naffidavit. In suitable cases, the Magistrate can restrict
\nthe inquiry to examination of documents without
\ninsisting for examination of witnesses.
\n4) We recommend that suitable amendments be made to
\nthe Act for provision of one trial against a person for
\nmultiple offences under Section 138 of the Act
\ncommitted within a period of 12 months,
\nnotwithstanding the restriction in Section 219 of the
\nCode.
\n5) The High Courts are requested to issue practice
\ndirections to the Trial Courts to treat service of
\nsummons in one complaint under Section 138 forming
\npart of a transaction, as deemed service in respect of
\nall the complaints filed before the same court relating
\nto dishonour of cheques issued as part of the said
\ntransaction.
\n6) Judgments of this Court in Adalat Prasad (supra) and
\nSubramanium Sethuraman (supra) have interpreted
\n25 | P a g e
\nthe law correctly and we reiterate that there is no
\ninherent power of Trial Courts to review or recall the
\nissue of summons. This does not affect the power of
\nthe Trial Court under Section 322 of the Code to revisit
\nthe order of issue of process in case it is brought to the
\ncourt\u2019s notice that it lacks jurisdiction to try the
\ncomplaint.
\n7) Section 258 of the Code is not applicable to complaints
\nunder Section 138 of the Act and findings to the
\ncontrary in Meters and Instruments (supra) do not
\nlay down correct law. To conclusively deal with this
\naspect, amendment to the Act empowering the Trial
\nCourts to reconsider\/recall summons in respect of
\ncomplaints under Section 138 shall be considered by
\nthe Committee constituted by an order of this Court
\ndated 10.03.2021.
\n8) All other points, which have been raised by the Amici
\nCuriae in their preliminary report and written
\nsubmissions and not considered herein, shall be the
\nsubject matter of deliberation by the aforementioned
\nCommittee. Any other issue relating to expeditious
\n26 | P a g e
\ndisposal of complaints under Section 138 of the Act
\nshall also be considered by the Committee.
\n25. List the matter after eight weeks. Further hearing in this
\nmatter will be before 3-Judges Bench.
\n26. We place on record our appreciation for the valuable
\nassistance rendered by Mr. Sidharth Luthra, learned Senior
\nCounsel and Mr. K. Parameshwar, learned Counsel, as Amici
\nCuriae.
\n………………….CJI.
\n[ S. A. BOBDE ]
\n…………………………….J.
\n[ L. NAGESWARA RAO ]
\n……………………J.
\n[B. R. GAVAI ]
\n……………………….J.
\n[ A. S. BOPANNA ]
\n………………………………J.
\n[ S. RAVINDRA BHAT ]
\nNew Delhi,
\nApril 16, 2021
\n27 | P a g e<\/p>\n","protected":false},"excerpt":{"rendered":"
Chapter XVII inserted in the Negotiable Instruments 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 Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of years.<\/p>\n