Single Trial Of Multiple Cases Under Single Transaction: An Overview of the Supreme Court Judgement

Recently, the Supreme Court of India in a suo moto case comprising of Hon’ble Chief Justice of India S.A Bobde, L Nageswara Rao, B.R Gavai, AS Bopanna and S Ravindra Bhat JJ. passed a few directions and recommendations to the High Courts and Magistrate courts for speedy disposal of the cases under S.138 of the Negotiable Instruments Act. The Court with the assistance of the Amicus Curiae took notice of the fact that the huge pendency of cases filed under section 138 is having an adverse effect on disposal of other criminal cases and that there is an imminent need for remedying the situation as addressed by the Negotiable Instruments Act.

The Court took notice of the seven issues identified by the Learned Amicus Curiae Mr. Sidharth Luthra and Mr. K. Parameshwa. These responses were received from the State Governments and Union territories which are a) Service of Summons, b) Statutory Amendment to section 219 of the Code, c) Summary trials d) Attachment of bank accounts e) Applicability of Section 202 of the Code f) Mediation and also noted that service of summons has been one of the main reasons for the delay in disposal of such complaints.

The learned Amicus Curiae even made certain suggestions for which the Court constituted a committee to take into consideration amongst other things for speedy disposal of the cases under section 138.

It was further brought to the notice of the Court that summary trials were routinely converted into summons trial and it was suggested that the High Courts may issue practice directions to the Magistrate to record reasons before converting trial of Complaints under section 138 from summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act. It was further suggested by the Amicus and considered by the Court that as Section 145 provides that the evidence of the complainant may be given by him on affidavit, it can be read with section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process.. The Court even observed and agreed with the recommendation of the Amicus curiae that a legislative amendment is required for trial of more than three offences of the same kind under Section 138 in the space of 12 months, notwithstanding the restriction in Section 219 of the Code.

Lastly, the Amicus contended that a the Trial courts should be conferred power of review or recall of the issuance of summons process in relation to complaints filed under section 138 of the Act. This contention of the Amicus Curiae was based on the holistic reading of section 251 and 258 of the code read with section 143 of the Act. However, the court observed that section 258 is not applicable to a summons case instituted on a complaint and further observed that the judgement of the Court in Meters and Instruments Pvt. Ltd. And Another v/s. Kanchan Mehta (2018) 1 SCC 560 is not a good law in so far as it confers power on the Trial Court to discharge an accused.

The Court after consideration of the all the submissions, contentions and recommendations of the Amicus Curiae which were not referred to the Committee, concluded with the following directions and recommendations:
1) The High Courts 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.
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. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.
4) 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.
5) The High Courts 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.
6) Trial Courts have no inherent power to review or recall the issue of summons. However, 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.
7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act. 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 by an order of this Court dated 10.03.2021.
On 10.03.2021, a Committee with Hon’ble Mr. Justice R.C. Chavan, former Judge of the Bombay High Court, as the Chairman was formed to consider various suggestions that are made for arresting the explosion of the judicial docket.
8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.
The above instructions were given in the case of "Expeditious Trial of Suits under Section 138 of the N.I. Act 1881" due to the overwhelming number of complaints pending under the said provision.

-By Hetvi Shah
Associate
Sollicitus Lex