Bombay HC Guidelines for expeditious disposal of cheque dishonour case

The Honourable the Chief Justice has been pleased to issue the following practice directions : -

1. The magistrates having jurisdiction to try offences under the

Negotiable Instruments Act, 1881 (in short N.I. Act), shall record

cogent and sufficient reasons before converting a complaint

under section 138 of the N.I. Act from summary trial to summons

trial in exercise of power under the second proviso of section 143

of N.I.Act. Due care and caution shall be exercised in this regard

and the conversion of summary trial to summons trial shall not be

in a mechanical manner.

2. On receipt of any complaint under section 138 of N.I. Act,

wherever it is found that any accused is resident of the area

beyond the territorial jurisdiction of the magistrate concerned, an

inquiry shall be conducted by the magistrate to arrive at

sufficient grounds to proceed against the accused as prescribed

under section 202 of Cr.P.C.

3. While conducting any such inquiry under section 202 of Cr.P.C.,

the evidence of witnesses on behalf of the complainant shall be

permitted to be taken on affidavit. In suitable cases, the

magistrate may restrict the inquiry to examination of documents

without insisting for examination of witnesses for satisfaction as

to the sufficiency of grounds for proceeding under the said

provision.

4. Trial Court shall treat service of summons in one complaint

under section 138 of the N.I. Act forming part of a transaction, as

deemed service in respect of all complaints filed before the same

Court relating to the dishonor of cheques issued as a part of the

same transaction.

5. Trial Courts have no inherent power to review or recall the issue

of summons in relation to complaint filed under section 138 of

N.I. Act. However, the same shall not affect the power of the

Trial Court under section 322 of Cr.P.C 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.

6. Section 258 of Cr.P.C. has no applicability to complaints under

section 138 of the N.I.Act. The words “as far as may be” in

section 143 are used only in respect of applicability of sections

262 to 265 of the Code and the summary procedure to be

followed for trials under the said Code.

7. The appellate courts before which appeals against the judgments

in complaint under section 138 of the N.I. Act are pending are

directed to make an effort to settle the dispute through mediation.

These practice directions shall come into force with immediate

effect.

HIGH COURT OF JUDICATURE APPELLATE SIDE

AT BOMBAY

C I R C U L A R

Dated : 27th JANUARY 2022

In compliance of the order of Hon’ble the Supreme Court of India

dated 16.04.2021 passed in Suo Motu Writ Petition (Criminal) No. 2/2020

titled “In Re: Expeditious Trial of Cases under Section 138 of Negotiable

Instrument Act 1881”, the Honourable the Chief Justice has been pleased to issue the following practice directions : -

1. The magistrates having jurisdiction to try offences under the

Negotiable Instruments Act, 1881 (in short N.I. Act), shall record

cogent and sufficient reasons before converting a complaint

under section 138 of the N.I. Act from summary trial to summons

trial in exercise of power under the second proviso of section 143

of N.I.Act. Due care and caution shall be exercised in this regard

and the conversion of summary trial to summons trial shall not be

in a mechanical manner.

2. On receipt of any complaint under section 138 of N.I. Act,

wherever it is found that any accused is resident of the area

beyond the territorial jurisdiction of the magistrate concerned, an

inquiry shall be conducted by the magistrate to arrive at

sufficient grounds to proceed against the accused as prescribed

under section 202 of Cr.P.C.

3. While conducting any such inquiry under section 202 of Cr.P.C.,

the evidence of witnesses on behalf of the complainant shall be

permitted to be taken on affidavit. In suitable cases, the

magistrate may restrict the inquiry to examination of documents

without insisting for examination of witnesses for satisfaction as

to the sufficiency of grounds for proceeding under the said

provision.

4. Trial Court shall treat service of summons in one complaint

under section 138 of the N.I. Act forming part of a transaction, as

deemed service in respect of all complaints filed before the same

Court relating to the dishonor of cheques issued as a part of the

same transaction.

5. Trial Courts have no inherent power to review or recall the issue

of summons in relation to complaint filed under section 138 of

N.I. Act. However, the same shall not affect the power of the

Trial Court under section 322 of Cr.P.C 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.

6. Section 258 of Cr.P.C. has no applicability to complaints under

section 138 of the N.I.Act. The words “as far as may be” in

section 143 are used only in respect of applicability of sections

262 to 265 of the Code and the summary procedure to be

followed for trials under the said Code.

7. The appellate courts before which appeals against the judgments

in complaint under section 138 of the N.I. Act are pending are

directed to make an effort to settle the dispute through mediation.

These practice directions shall come into force with immediate

effect.

Strict compliance of the above directions be insured.

HIGH COURT OF JUDICATURE By Order

APPELLATE SIDE, BOMBAY

Sd/-

Dated : 27th JANUARY 2022 Mahendra W. Chandwani

(Registrar General)

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