Q. Whether Magistrates Are To Record Reasons Before Converting Trial Of Complaints Under Section 138 Of The Act,1882 From Summary Trial To Summons Trial ?
A. YES
RELEVANT CASE LAW:
In Re EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 of N.I Act (C.B.) LL 2021 SC 217
The C.B. issued the FOLLOWING DIRECTIONS to expedite the trial of cheque dishonor cases under Section 138 NI Act:
1. The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial .
2. INQUIRY SHALL be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.
SQ. Whether Procedure U/S. 202 CrPC Is Applicable In Private Complaint U/S.138 NIA,1882 ?
A. YES
SQ. Whether For The Conduct Of Inquiry Under Section 202 Of The Code, Evidence Of Witnesses On Behalf Of The Complainant Can Be Taken On Affidavit ?
A. YES
3. For the conduct of inquiry under Section 202 of the Code,evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit.
SQ. Whether The Magistrate Can Restrict The Inquiry To Examination Of Documents Without Insisting For Examination Of Witnesses ?
A. YES, in suitable cases.
4. In suitable cases, the Magistrate can restrict the inquiry to examination of DOCUMENTS without insisting for examination of witnesses.
SQ. Is There Any Provision Of One Trial Against A Person For MULTIPLE OFFENCES Under Section 138 Of The Act Committed Within A Period Of 12 Months, Notwithstanding The Restriction In Section 219 Of The Code ?
A. NO.
5. Tough, SC has recommended that suitable amendments be made to the Act for provision of one trial against a person for MULTIPLE OFFENCES under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.
SQ. Is There Any Provision To Treat Service Of Summons In One Complaint Under Section 138 Forming Part Of A Transaction, As Deemed Service In Respect Of All The Complaints Filed Before The Same Court Relating To Dishonour Of Cheques Issued As Part Of The Said Transaction ?
A. NO.
6. Though, in the above judgment, the High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction,as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
SQ. Is There Any Inherent Power Of Trial Courts To Review Or Recall The Issue Of Summons ?
A. NO
7. RELIED UPON & HELD THAT:
Judgments of the Court in
- ADALAT PRASAD V ROOPLAL JINDAL (2004) 7 SCC 338 and
- SUBRAMANIUM SETHURAMAN STATE OF MAHARASHTRA (2004) 13 SCC 324
have interpreted the law correctly and
REITERATE THAT there is no inherent power of Trial Courts to review or recall the issue of summons .
SQ. Is it limit or adversely affect the power of the Trial Court under Section 322 of the Code 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 ?
A. This does not affect the power of the Trial Court under Section 322 of the Code 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.
SQ. Whether Procedure U/S. 258 CrPC Is Applicable In Private Complaint U/S.138 NIA,1882 ?
10. Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in
- METERS AND INSTRUMENTS PRIVATE Ltd v KANCHAN MEHTA (2018) 1 SCC 560
do not lay down correct law.
NOTE:- IN above SUO MOTU CASE, SC , To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted the Court on 10.03.2021.