Advanced Search Search Tips
View Complete document
Ajay Jain vs Purshottam Nath Jain & Sons (Huf) on 4 February, 2013
Showing the contexts in which 138 ni act appears in the document
Change context size

5. This Crl.Rev.P. No.478/2011 has provided a window to this Court 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.

16. The learned Trial Court has not given the citation or name of the „latest case law‟ relying upon which the statement of accused was dispensed with and the matter was straight away posted for defence evidence.

17. Although citation has not been given by learned Trial Court but it appears that learned Trial Court was referring to Rajesh Agarwal's case but without caring to go through the entire report, preferred to concentrate on para 17 wherein steps required to be taken by learned Trial Court in conducting the trial in case under Section 138 NI Act were prescribed. Had the learned Trial Court taken the pain to go through the entire report, he would have taken note of the discussion made in this regard in paras 6,7 and 8 of the decision. In Rajesh Agarwal's case (Sura), while disposing of three petitions i.e. Crl.M.C. No.1996/2010, 1700/2009 and 1397/2010, feeling concerned that the High Court is Crl.Rev.P.No.478/2011 Page 8 of 18 being flooded with the petitions under Section 482 CrPC for quashing the complaints under Section 138 NI Act and the grounds on which generally the quashing was sought, the learned Single Judge highlighted the objective of the 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 :-

18. Section 143 of NI Act provides that the cases under Section 138 NI Act shall be tried summarily by a Judicial Magistrate of First Class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265, (both inclusive) of the Code of Criminal Procedure shall, as far as may be, apply to such trials.

19. Code of Criminal Procedure in Chapter XXI prescribes procedure to be followed in Summary Trials. Section 262 CrPC provides that the procedure specified for trial of summons case shall be followed, except as mentioned in Section 262 Sub-Section (2). The sentence which can be awarded by following the summary trial procedure in a case under Section 138 NI Act is governed by Section 143(1) of NI Act.

37. Having regard to the foregoing facts and circumstances, I find the grievance of the petitioner to be well founded. Learned Trial Court has overlooked the provisions of CrPC prescribing procedure to be followed in conducting an inquiry into an offence punishable under Section 138 NI Act by following the procedure prescribed for summary trial/summon trial. Not only procedure prescribed for conducting the trial had been bid good by learned Trial Court, even the guidelines by this Court in Rajesh Agarwal's case prescribing the manner in which the trial is to be conducted in cases under Section 138 NI Act, have been ignored. Accused cannot be made to suffer for lack of understanding of procedure required to be followed by the Court of Magistrate in such cases. In view of above situation, I am of the considered opinion that the order suffers from grave illegality and the same is liable to be set aside.