TaxTMI 
TaxTMI 
2003 (11) TMI 624
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....ay extend to two years or with fine which may extend to twice the amount of the cheque, or with both. Section 139 of the Act deals with the presumption in favor of holder. Section 140 of the Act indicates the defenses which may not be allowed in any prosecution under Section 138. Section 142 of the Act deals as to which Court can take cognizance of offences. Section 143 deals with the power of Court to try cases under Section 138 of the Act summarily. Sub-section [2] of Section 143 of the Act prescribes that the trial of a case as far as practicable be continued from day-today until its conclusion except for reason beyond control the Court adjourns the case. Sub-section (3) of Section 143 envisages that the trial under this section shall be conducted as expeditiously as possible and all endeavors should be made to conclude the trial within six months from the date of filing of the petition. 2. Keeping in view the intention and the mandate of the Legislature in mind that cases under the Act be concluded expeditiously, the High Court found that number of cases filed under Section 138 of the Act could not be disposed of expeditiously because of acute shortages of judicial officers ....
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....d order has taken away the right of appeal of the petitioners to the Court of Session as envisaged under Section 374(3) of the Code and further the right of revision to the High Court under Section 397(1) of the Code from the judgment and order of the Court of Session; (vii) that there is violation of principle of natural justice and the order is liable to be struck down. 4. The above pleas raised by the petitioners have been controverter by the respondent primarily on the ground that the Legislature has not put any fetters on the powers of the High Court under Article 227of the Constitution. Moreover, only safeguard prescribed under the Act is that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of First Class shall try an offence punishable under Section 138 of the Act. There is so bar under any provision of the Act that the trial of a complaint case under Section 138 cannot be conducted by the Court of Session. That the constitution sought to be given by the petitioners is without any basis. That non-obstante clause in Section 142 of the Act, the provisions of the Code in so far as inconsistent with those of Section 142 would not apply to the t....
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....ch person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Section 142. Cognizance of offences-- Not....
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.... (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavor shall be made to conclude the trial within six months from the date of filing of the complaint. Provision of the Code-- Section 2(w)--"summon-case" means a case relating to an offence, and not being a warrant-case; Section 2(x)--"warrant case" means a case relating to offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years." Section 4 : (1) All offences under the Indian Penal Code shall be investigated, enquired into, tried, and otherwise dealt with according to the provision hereinafter contained. (2) All offences under any other law shall be investigated, enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating/enquiring into, trying or otherwise dealing with such offences. Section 26--subject to the other provisions of the Code : (a) any offence under the Indian Penal Code (45 of 1860) may be tried by: ....
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....e which are inconsistent with those of Section 142 of the Act would not apply to the case being tried under Section 138. Nor the petitioner can drive any aid from the provision of Section 143 of the Act which came into effect on 6.2.2003 i.e. after the impugned order was passed. The provision of Section 143, Therefore, will have no retrospective effect. Reading of Section 143 of the Act makes it clear that earlier there was no bar for the cases being tried under Section 138 by any superior Court than the Court prescribed under Section 973 of the Act but with the amendment of the Act and bringing on Statute Book Section 143 a specific procedure has been prescribed for trial of cases under Section 138 of the Act. Therefore, no advantage can be taken of the amendment to the Act and in particular Section 143 by the petitioners. 10. We find this submission of Mr. Neeraj Kaul without substance for the obvious reason that provisions of Section 142 of the Act are explicit. The expression "any Magistrate" under the other laws, to our mind, would include the N.I. Act. The said Act under Section 142(c) prescribes the Court which will have jurisdiction. Section 142(c) of the Act prescribes ....
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....To support our conclusion we are placing reliance on the decision of Supreme Court in the case of Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr. 1 (2001) CCR 106 :2001 (1) JCC 82, where while interpreting Section 142 of the Act, Justice K.T. Thomas speaking for the Bench observed: "That under the Code, Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon receiving information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the N.I. Act says that insofar as the offence under Section 138 is concerned no Court shall take cognizance kept upon a complaint made by the payee of the holder in the due course of the cheque. The second is this : Under the Code a complaint Court be made at any time subject to the provisions of the Chapter xxxvI. But so far as the offence under Section 138 of the N.I. Act is concerned such complaint shall be made within one month of the cause of action. The third is this : Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less....
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....1984 in the case reported as K.S. Nayak v. A.R. Autulay, 1984CriLJ613 Apex Court in A.R. Autulay's case was considering the powers of the Court to transfer cases vis-a-vis the provisions of special legislation and came to the conclusion that it could not have transferred the case from the Court of Special Judge to the High Court of Bombay. The facts in R. S. Nayak's case (supra), are that the Apex Court while holding that a Member of Legislative Assembly is not a public servant set aside the order of the Special Judge. Instead of remanding the case to the Special Judge for disposal the Apex Court of its own withdrew the case from Special Judge and transferred the same to the Bombay High Court with a request that those cases be assigned to a sitting Judge of the High Court for holding the trial on day-to-day basis. These directions were challenged by A.R. Autulay which came up before the Larger Bench. While interpreting the provision of the Criminal Law Amendment Act (46 of 1952) (hereinafter called 1952 Act) and in particular Section 7 of the 1952 Act which provides that notwithstanding anything contained in the Code of Criminal Procedure, or any other law the offences spec....
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....e 1952 Act, no specific bar is provided under Section 142(c) of the Act. No doubt under 1952 Act it was provided that the cases shall be triable by Special Judge only. But reading of the N.I. Act does not indicate that under Section 142(c) unlimited jurisdiction vests with various Courts to try cases under Section 138 of the Act. Even though the words "only has not been written in Section 142(c) but the intention of the Legislature can be inferred. When we say that cases under Section 138 would not be tried by any Court inferior to the Metropolitan Magistrate or Judicial Magistrate, First Class it does not automatically expand the jurisdiction to superior Courts. In fact the reading of Section 142(c) makes it clear that cases under Section 138 of the Act being summons cases are to be tried by Metropolitan Magistrate or Judicial Magistrate, First Class. First Schedule Part-11 of the Code provides that if the offence is punishable with imprisonment for less than 3 years or with fine only, then such an offence is triable by "Any Magistrate". It is with a view to circumvent "Any Magistrate" that the Legislature in its wisdom incorporated in Section 142(c) of the N.I. Act which is speci....
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....t, to our mind, excludes the jurisdiction of the Court of Session and, Therefore, the transfer of case from the Court of Metropolitan Magistrate to the Court of Sessions is in violation of the provision of special enactment i.e. N.I. Act. The Apex Court in the case of P.C. Gulati v. Lalya Ram and Ors., 1966CriLJ465 , was not dealing with transfer of case under the special legislation. Even otherwise no order under Section 407 of the Code could have been passed in view of judgment of Supreme Court in A.R. Antulay's case (supra). The procedure prescribed under the special enactment i.e. N.I. Act cannot be circumvented by either invoking he provision of Section 407 of the Code or Article 227 of the Constitution. By doing so this High Court acted contrary to the relevant statutory provision as envisaged under Section 142(c) of the Act. 14. We also find force in the submission of Mr. Anil Kumar Sharma that there will be a discrimination between the persons accused of the offence under Section 138 whose cases were filed after 31.12.2001 and the petitioners against whom the cases were filed prior to 31.12.2001. The accused against whom cases are filed after 31.12.2001 would be used....
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.... On that short and simple ground I would decide this case and hold the Act bad." 15. These observations squarely apply to the facts of this case. The object of transfer of cases filed up to 31.12.2001 cannot form the basis of any classification between the persons accused of the same offence. Therefore, to our mind, it amounts to hostile discrimination and as already pointed out above it has taken away their right of appeal to the Court of Sessions under Section 374(3) of the Code and the right of revision to the High Court under Section 397 of the Code from any judgment/order of the Court of Session. In A.R. Antulay's case the Apex Court declared that the remedy of the revision is a right conferred under the Code. In the case of T. Ramachan Rao v. Karnataka 2001 (II) AD (Cr.) SC 233, the Apex Court observed: "No person shall be deprived of his life or personal liberty except according to the procedure established by law declares Article 21 of the Constitution. ... persuaded the Constitutional Courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would en....