2021 (4) TMI 33 - HC - Indian Laws

Validity of Additional Courts for Section 138 Cases Confirmed

Syed Asif Ali & Anr. Versus State Of U.P. Thru Prin. Secretary, Home, Lko. & Ors.

Syed Asif Ali & Anr. Versus State Of U.P. Thru Prin. Secretary, Home, Lko. & Ors. - TMI Issues Involved:1. Legality and constitutionality of the Government Orders dated 30.12.2015 and 26.07.2016.2. Validity of the trial of an offence under Section 138 of the Negotiable Instruments Act, 1881 by Additional Courts presided by retired District and Sessions Judges.3. Maintainability of the complaint case under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881.4. Jurisdiction and power of the Additional Courts created by the impugned Government Orders.Issue-wise Detailed Analysis:1. Legality and Constitutionality of the Government Orders:The petitioners challenged the Government Orders dated 30.12.2015 and 26.07.2016, arguing that the creation of Additional Courts presided over by retired District and Sessions Judges was illegal and unconstitutional. The court examined the process of issuing these orders, noting that the creation of these courts was based on the recommendations of the 14th Finance Commission to address high pendency of cases. The High Court had requested the State Government to create these courts, which were to be manned by retired judges. The court found that the appointments were made following due procedure and were in line with Section 13 of the Code of Criminal Procedure, 1973, which allows the High Court to confer powers on retired judges to act as Special Judicial Magistrates. Thus, the court held that the Government Orders were legal and constitutional.2. Validity of the Trial by Additional Courts:The petitioners argued that the trial of offences under Section 138 of the Negotiable Instruments Act by retired District and Sessions Judges was not contemplated by law and violated Section 142(1)(c) of the Act, which states that no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try such offences. The court rejected this argument, stating that the retired judges appointed as Special Judicial Magistrates were not inferior to serving Metropolitan or Judicial Magistrates. The court emphasized that these judges were conferred specific powers under Section 13 of the Cr.P.C. and were competent to try cases under Section 138 of the Negotiable Instruments Act.3. Maintainability of the Complaint Case:The petitioners contended that the complaint case against the sole proprietorship firm was not maintainable under Section 141 of the Negotiable Instruments Act, as a sole proprietorship is not a 'company.' The court did not find merit in this argument, as the primary issue was the jurisdiction and power of the Additional Courts to try the case, which was already established as valid.4. Jurisdiction and Power of Additional Courts:The court examined the jurisdiction and power of the Additional Courts created by the impugned Government Orders. It noted that these courts were created to handle cases like motor vehicle challans, insurance claims, and cheque bouncing matters, and the retired judges were given powers to act as Special Judicial Magistrates. The court found that the appointments and the conferral of powers were in accordance with Section 13 of the Cr.P.C., which allows the High Court to appoint retired judges as Special Judicial Magistrates for specific terms. The court concluded that the Additional Courts had the jurisdiction and power to try cases under Section 138 of the Negotiable Instruments Act.Conclusion:The court dismissed the writ petition, holding that the Government Orders creating Additional Courts presided by retired District and Sessions Judges were legal and constitutional. It further affirmed that these courts had the jurisdiction and power to try cases under Section 138 of the Negotiable Instruments Act, and the complaint case against the petitioners was maintainable. The petitioners' arguments regarding the invalidity of the trial and the maintainability of the complaint were found to be without merit.