What Courts should do on Complaint u/s 138 of NI Act

Laws related to dishonor of cheque has changed much especially after amendments to Negotiable Instruments Act in the year 2002, which aimed to criminalize the basic nature of offence and to provide for speedy trial. Although, people still complaint for delay in decision as usually decision comes after 3-4 years due to long interval between two dates, thanks to overburdened courts.

Supreme Court of India through its judgments has always tried to issue guidelines for trial under section 138 of Negotiable Instruments Act so that judgment can be arrived at in minimum possible time. Most recent detailed direction came in Indian Bank Association and others vs. Union of India & others reported in AIR 2014 Supreme Court 2528. Accordingly procedure to be adopted by Metropolitan Magistrate/ Judicial Magistrate can be summarized as follows:
  • On receipt of any complaint under section 138 of Negotiable Instruments Act, Metropolitan Magistrate/ Judicial Magistrate (MM/JM) should make detailed scrutiny of the complaint, affidavit and documents in order to ascertain whether they are in order and summons can be issued. He should issue summons only if everything is found in order. 
  • MM/JM need to adopt a practical and realistic approach to issue summons, which should be properly addressed and sent by speed post as well as by e¬-mail (if complainant provides so) In case the Court feels it appropriate, it should take assistance of the police or the nearby court to serve notice to accused.
  • Court should fix shortest* possible date for appearance of accused and if the summons is received back un-served, immediate further requisite action be taken.
  • Hon'ble Supreme Court further suggested that in summons Court may indicate that if the accused wish to get the offence compounded, he may do so on the first date of hearing and if any application to that effect is moved the same be disposed off at the earliest.
  • In other case the accused should be directed to furnish bail bond to ensure his presence during trial. Thereafter he should be asked to take notice under Section 251 of Cr.P.C. to enable him to enter plea of defence and proceed for defence evidence, unless accused files application under Section 145(2) of Cr.P.C. for recalling of Complainant Witness for cross-examination.
  • The court should ensure that examination-in-chief, cross-examination and re-examination of the complainant be conducted within three months* of assigning the case. It has further clarified that the court may accept affidavit for evidence instead of examination in Court.

* In practical situations there may happen six months gap in between two dates due to overburdened court. Hence, this guideline remains on paper only.

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