Crl.Rev.P.No.478/2011 Page 2 of 18 to peep into the functioning of learned Trial Court who was dealing with large pendency of cases under Section 138 NI Act. The procedure being followed by learned Trial Court in conducting trial of these cases is neither in consonance with the summary procedure prescribed under Section 143 of Negotiable Instrument Act nor in accordance with Chapter XXI of CrPC laying down procedure for summary trial or under Chapter XX for summons trial cases. The guidelines/procedure laid down by this Court in Rajesh Agarwal vs. State & Anr. 171 (2010) DLT 51, were infact intended to guide subordinate judiciary as „Light House‟ so that the huge pendency of cases under Negotiable Instrument Act can be tackled in such manner that the very object of provisions of Section 138 NI Act i.e. expeditious disposal in cheque bouncing case could be achieved, have also not been followed in letter and spirit.
proceedings under Section 138 NI Act. He also considered that this situation has arrived for the reason that the lower Courts are not following the mandate of the Statute of conducting trial of the cases under Section 138 of NI Act in a summary manner and despite amendment in NI Act, continue trying these cases as summons trial cases and a long drawn procedure is followed. In paras 4 and 5 of the report, it was observed by learned Single Judge, as under :-
cases under Section 138 N.I. Act are tried before the Court of MM/JM in an expeditious manner, Legislature provided for summary trial. Section 145 of N.I. Act provides that evidence of complainant may be given by him by way Crl.Rev.P.No.478/2011 Page 9 of 18 of affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court. This also makes clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre- summoning stage and the post summoning stage. The complainant is not required to be recalled and re-examined after summoning of accused unless the MM passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of N.I. Act suo moto by the Court
35. This case could be only a tip of an iceberg as learned Trial Court must be following this procedure in all the cases under Section 138 NI Act being tried by him by not recording the plea as to what defence he has to make and statement of accused thereby causing grave prejudice to the accused persons, thus resulting in serious miscarriage of justice which causes serious concern in the mind of this Court. I am rather pained to note that learned Trial Court neither cared to follow the procedure laid down under Negotiable Instrument Act and Code of Criminal Procedure for conducting trial in such type of cases nor the guidelines laid down by this Court in Rajesh Agarwal's case which was,