Complaint to include affidavit & documents
A complaint regarding cheque dishonour, under Section 138 of the Negotiable Instruments Act (NI Act), can be filed to the Magistrate Court with an affidavit and associated documents.
State that no other case has been filed
The complainant must disclose in the affidavit that no other complaint has been filed in any other court.
Magistrate can take cognizance on examining documents
On the day of filing of the complaint, the Magistrate may scrutinize the application and documents, and if he is satisfied as to taking cognizance, he can issue process without examining complainant and witnesses.
The physical presence of the complainant or witness is not mandatory to decide whether to issue process or not.
Power of Attorney holder can file complaint
Complaint can even be filed by Power of Attorney holder who can depose and verify the contents of the complaint if he has witnessed the transaction or possess sound knowledge regarding the transaction.
Complaint must state PoA’s knowledge of transaction
The complainant must make in the complaint specific assertions as to the explicit knowledge of the Power of Attorney holder regarding the transactions stated in the complaint.
If he has no sound knowledge of the transaction he cannot be examined as a witness.
File 202(1) CrPC affidavit, if accused resides outside
If the accused resides beyond the territorial jurisdiction of the court, the court shall conduct an inquiry under Section 202 (1) of the CrPC to decide whether there are sufficient grounds for proceeding against the accused.
For 202(1) inquiry, the evidence of the complainant can be taken as affidavit. The witnesses can also file affidavit on behalf of the complainant. But the witnesses need not compulsorily be examined then.
In suitable cases, it is enough for the Magistrate to examine the affidavit and documents, in lieu of the inquiry u/s 202(1) CrPC, so as to issue the processes
Register every case as a Summary Trial case
Every complaint under Section 138 of the NI Act shall initially be registered as a Summary Trial case.
Summons to be served by post, mail or through police
Summons, in cheque dishonour case, may be served by post as well as by email, and in appropriate cases assistance of the police will be taken to serve summons to the accused in the nearby places.
Summons to state possibility of compounding & amount
The summons must indicate that if the accused may make an application for compounding at the first hearing the case, the court may pass appropriate orders at the earliest.
The summons should indicate the amount to be deposited, based on the assessment of the cheque amount and other associated details, for closure of the proceedings even without the accused appearing before the court.
Direct the accused to take bail when appears
When the accused appears, the court should direct him to furnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 of the CrPC to enable him to enter his plea of defence and fix the case for defence evidence.
The accused who wants to contest the case must disclose his specific defence for such contest.
If Magistrate lacks jurisdiction transfer it to CJM
If the Magistrate lacks jurisdiction to try the case, he should transfer it to the Chief Judicial Magistrate (CJM) u/s 322 of the CrPC.
Trial be in summary form if sentence is 1 year or less
Trial of the case will normally be in summary form but if the Magistrate considers that the sentence of more than one year may have to be passed or regarding the amount of the cheque or the possibility of compensation, the case can be tried in the form of Summons Trial.
Magistrate has discretion to convert Summary Trial to Summons Trial case but the decision will have to be taken with due care and caution.
Proof affidavit can be accepted in lieu of chief examination
The court can accept affidavit, as formal proof, of witnesses instead of examining them in that court in examination-in-chief, but the witnesses to the complainant and accused must be available for cross examination as when there is direction from the court for the purpose.
Affidavit to contain proof of documents
Affidavit of the complainant may contain formal proof of the documents.
If accused raises any objection regarding the validity or sufficiency of the document submitted with the affidavit and if objections are sustained by the court, it is always open to the prosecution to have the witness concerned summoned and get the lacunae in proof of the documents corrected.
Accused cannot file affidavit in lieu of chief examination
Accused shall not be permitted to file his examination-in-chief in the form of affidavit.
Plea bargaining permissible in cheque case
The court can consider the provision of plea bargaining in cheque cases too.
Court can compound if complainant is compensated
Compounding in criminal cases normally requires consent of parties. The court should encourage compounding at the initial stage itself. Later stage also it is not banned.
In cheque cases, if the complainant is adequately compensated the court in its discretion can compound the cheque case.
Cheque case may be completed within six months
The trial in cheque case may be done day to day basis and the court may endeavour it to be completed within six months.
References
- Indian Bank Assn v Union of India [(2014)5 SCC 590]
- Damodar S Prabhu v Sayed Babalal H [ (2010) 5 SCC 663]
- AC Narayanan v State of Maharashtra [(2014) 11 SCC 790]
- In Re: Expeditious Trial of Cases under Section 138 NI Act [(2021) SCC Online SC 325]
- Meters and Instruments(p) Ltd v Kanchan Mehta [(2018) 1 SCC 560]
- Mandvi Cooperative Bank Ltd v Nimesh B Thakore [(2010) 3 SCC 83]
