TaxTMI 
TaxTMI 
2024 (8) TMI 81
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....nts to denial of an opportunity. He submits that such rejection is clearly against the settled principles of criminal jurisprudence of granting fair opportunity to the accused to decide the matter as hurriedly did in the present matter. He would then submit that at the most some cost could have been awarded to the petitioners for the purpose of allowing the order of recall. 5. Mr Karn would further submits that order dated 14.8.2023 was passed without giving any opportunity to the petitioners thereby closing cross examination of the complainant. Petitioners then filed an application for recall of the order dated 14.8.2023 which was rejected by order dated 25.9.2023. He submits that both these orders are challenged in the present petition on the ground that there is no fair trial and opportunity has been denied hurriedly though the respondent/complainant took many opportunities for the purpose of verification and also after issuing process. 6. Mr Karn would submit that complaint under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short) is filed against the petitioners wherein process was issued and the petitioners appeared. Substance of accusation was exp....
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.... there was no payment forthcoming and accordingly, offence stands concluded against the petitioners and the directors resulting in filing of the complaint. 13. Records show that after verification of the complaint on the basis of filing of the affidavit, process was issued against the accused. 14. Admittedly proceedings under Section 138 of the Act are required to be conducted as summary procedure unless the Magistrate comes to the conclusion that there is need to convert it into summons triable matter. There is no such order passed by the learned Magistrate in the present complaint to convert it into summons triable matter. 15. Record shows that from 15.8.2022 matter is shown as pending for appearance and submission of sureties as well as recording of substance of accusation. Finally on 15.7.2023 all the accused/ petitioners remained present before the Magistrate and the substance of accusation was explained. All the accused plead not guilty and accordingly order was passed that the accused shall face the trial. The next date was fixed on 14.8.2023. 16. When the matter was called out on 14.8.2023 an application was filed on behalf of the complainant for payment of inte....
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.... necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint." 19. Perusal of the above provision which was inserted by Act of 55 of 2002 and came into effect from 6.2.2003 would clearly go to show that all offences under the said chapter i.e. chapter XVII starting with Section 138, shall be tried by Judicial Magistrate First Class and provision of Sections 262 to 265 of Code of Criminal Procedure as far as may be applied to such trials. 20. Chapter XXI of Cr.P.C. deals with powers to try summarily. Section 262 deals with procedure for summary trial. Thus it is clear that from Section 143 of the Act that proceedings under Section 138 of the Act shall be tried summarily by the Magistrate and the provisions of Sections 263 to 265 of the Cr.P.C. shall as far as may be applied to such trial. 21. Section 145 of the Act reads thus:- "145 Evidence on affidavit.-(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant....
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....ny inquiry/trial or other proceedings as provided under Section 145 (1) of the Act. Complainant need not step into the witness box again in order to prove his affidavit after the process is issued to the accused. This fact is clearly established in the directions issued by the Apex Court in the case of Indian Bank Association and others Vs Union of India and others (2014) 5 SCC 590, in paragraph 23 which reads thus:- "23 Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given: 23.1 The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2 The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well ....
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....ds 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 appl....
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....ction 138 of the Act is primarily a civil wrong. Burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 CrPC will apply and the court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. 18.2 The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court. 18.3 Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretio....
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....1. In Expeditious Trial of Cases under Section 138 of the N. I. Act, 1881 RE reported in (2021) 16 SCC 116, the Constitutional Bench of the Apex Court discussed the power of Magistrate to try summary and procedure adopted by the Magistrate to convert summary trial into summons triable mechanically, considered in detail provisions and the mandate of Section 143 of the Act. The main issue in that proceeding was the power of the Court under Section 258 of Cr.P.C. to stop the proceedings and in that context observations in the case of Meters and Instruments Private Limited(supra) were considered as inappropriate. However, specific directions were issued to the High Court to issue practice directions to the trial Court to treat service of summons in one complaint confirming part of the transactions as deem service in respect of all complaints filed before the same Court relating to dishonour of the cheque issued in part and the same transaction. 32. In the case of Narayan Shivdas Kadam vs Shriram Transport Finance Co. Ltd 2024 SCC Online Bom 653, discussed the provisions of Section 145 (2) of the Act and more particularly the case of Mandovi Co-operative Bank Ltd Vs. Nimesh B. Thakor....
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....during further stage of trial. Basically it is a rule of procedure laid down by the legislature in the manner in which evidence of the complainant needs to be recorded. However, Section 145 of the Act and more specifically sub section 2 allows the Court of its own motion to summon any such person who has given evidence on affidavit. Apart from power of the Court, prosecution i.e. complainant as well as accused are entitled, on an application being filed to summon the complainant and his witnesses for examination. However, the accused must disclose grounds for recalling such witnesses and probable defence on which he wants to cross examine the complainant and their witnesses. Thus it is clear that an application on behalf of the prosecution or accused is required to be filed thereby disclosing some grounds on which witnesses could be summoned by the Court. 36. It is no doubt true that the accused is having a valuable right to summon the complainant and his witness, however, has to disclose probable grounds on which recall of such witness is required. Once such probable grounds are disclosed in the application, a Court is duty bound to summon the complainant and his witness, who h....
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....) of the Act, matter to proceed for 313 statement and adjourned it to further date. On the next date the accused filed an application seeking permission to cross examine the complainant under Section 145 (2) of the Act and for reopening the case. Both these applications were rejected, which were challenged before this Court. By placing reliance in the case of Meters and Instruments Private Ltd (supra), learned Single Judge (Coram Prakash D. Naik, J) observed that an accused who wants to contest the case, must be required to disclose specific defence for such contest and then it is open to the Court to ask specific questions to the accused at that stage. Thus in the case of Mr Ajju C. S. Sindolli (supra), there was specific application filed giving details of the defence and further accused was ready and willing to make part payment and accordingly, the application was allowed. Such decision, to my mind, is clearly distinguishable as the matter in hand would go to show that no application under Section 145 (2) disclosing probable defence is filed till date. 42. In the case of Om Prakash Vs Manoj Kumar and another Criminal Revision No. 485 of 2023, the Himachal Pradesh High Court ....