The Bombay High Court issued directions for trial courts regarding Section 138 of Negotiable Instruments Act.
In compliance of the order of the Supreme Court of India passed in Suo Motu Writ Petition titled “In Re: Expeditious Trial of Cases under Section 138 of Negotiable Instrument Act 1881”.
The the Chief Justice issued the practice directions which stated that; The magistrates having jurisdiction to try offences under the Negotiable Instruments Act, 1881, shall record cogent and sufficient reasons before converting a complaint under section 138 of the N.I. Act from summary trial to summons trial in exercise of power under the second proviso of section 143 of N.I.Act.
Due care and caution shall be exercised in this regard and the conversion of summary trial to summons trial shall not be in a mechanical manner.
The court directed that on receipt of any complaint under section 138 of N.I. Act, wherever it is found that any accused is resident of the area beyond the territorial jurisdiction of the magistrate concerned, an inquiry shall be conducted by the magistrate to arrive at sufficient grounds to proceed against the accused as prescribed under section 202 of Cr.P.C.
The court added that while conducting any such inquiry under section 202 of Cr.P.C., the evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the magistrate may restrict the inquiry to examination of documents without insisting for examination of witnesses for satisfaction as to the sufficiency of grounds for proceeding under the said provision.
It was stated by the court in the circular that the Trial Court shall treat service of summons in one complaint under section 138 of the N.I. Act forming part of a transaction, as deemed service in respect of all complaints filed before the same Court relating to the dishonor of cheques issued as a part of the same transaction.
The court further directed that the Trial Courts have no inherent power to review or recall the issue of summons in relation to complaints filed under section 138 of N.I. Act.
However, the same shall not affect the power of the Trial Court under section 322 of Cr.P.C 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.
The court said that Section 258 of Cr.P.C. has no applicability to complaints under section 138 of the N.I.Act. 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 the said Code.
Lastly the court stated that the appellate courts before which appeals against the judgments in complaint under section 138 of the N.I. Act are pending, are directed to make an effort to settle the dispute through mediation.
Citation: No. Rule/P.1605/2022