R.M. JAYAPPA v. S.E. NAGARAJ

CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard Sri.Gururaj Joshi, learned counsel for the revision petitioner and Smt.Saritha Kulkarni, learned counsel for the respondent.

2. This revision petition is filed by the accused who has suffered an order of conviction in CC No.646/2017 dated 24.06.2022 on the file of Prl. Civil Judge and JMFC, Holalkere for the offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed in Criminal Appeal No.36/2022 dated 23.12.2022 on the file of I Additional District and Sessions Judge, Chitradurga.

3. Sri.Gururaj Joshi, learned counsel predominantly contended that the learned Trial Magistrate did not choose to take proper cognizance in trying the matter as summons case or summary trial resulting in miscarriage of justice and there was no proper opportunity granted to the accused to put forth his defence in the - 3 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 matter. Therefore, impugned orders needs to be set aside and matter be remitted to the Trial Court for fresh disposal in accordance with law.

4. In support of his arguments, he placed on record following judgments:

1. Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another reported in (2011) 9 SCC 638.

2. Smt.Shobhavathi v. Dr.Krishnoji Rao reported Karnataka 9997 2013 (Cri.R.P.No.1585/2004) STPL

3. Shashidar v. Bhimarao reported in 2013 STPL 7969 Karnataka (Cri.R.P.No.2628/2010)

5. Per contra, Smt.Saritha Kulkarni, learned counsel for the respondent contends that following the dictum of the Hon’ble apex court in the case of Indian Bank Association and Others v. Union of India & Others reported in (2014) 5 SCC 590, trial has to commence from the defence evidence as the presumption is available to the complainant under Section 139 of the Negotiable Instruments Act unless the accused files an - 4 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 application under Section 145(2) to cross-examine the P.W.1, who is the complainant.

6. Since, the Trial Magistrate did not issue proper summons in terms of the directions issued in Indian Bank Association supra, there is some force in the arguments put forth on behalf of the revision petitioner that the Trial Magistrate was not sure as to how the proceedings be dealt with in the case on hand.

7. There cannot be any dispute that as per the directions of the Hon’ble Apex Court in Indian Bank Association supra and guidelines issued by this court pursuant to the order passed by the Hon’ble Apex Court in WP(Crl) No.2/2020 (PIL-W) and SLP Crl.5464/2016 dated 16.04.2021, all the criminal Courts in the country is required to strictly adhere to such directions in conducting the criminal cases filed under Section 138 of the Negotiable Instruments Act. - 5 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023

8. Relevant directions in the case of Indian Bank Association supra is extracted here under and so also the guidelines are extracted here under: A. Directions in the case of Indian Bank Association supra: “23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:

23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.

23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.

23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his - 6 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross- examination. concerned must ensure cross-examination and 23.5. The examination-in-chief, re- examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court.” B. Guidelines in WP(Crl) No.2/2020 (PIL-W) and SLP Crl.5464/2016 dated 16.04.2021 a) The Magistrates trying the offences under N.1. Act shall record cogent and sufficient reasons before converting a summary trial to summons trial in exercise of power under the second proviso of Section 143 of N.I. Act. b) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the Court by following the procedure as contemplated under Section 202 of Cr.P.C. c) For the conduct of inquiry under Section 202 of Cr.P.C., evidence of the witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the Inquiry to examination of documents without insisting for examination of witnesses. d) To treat the service of summons in one complaint under Section 138 of the Negotiable Instrument Act - 7 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 1881 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonor of cheques issued as part of the said transaction. e) It is hereby clarified that there is no inherent power of Trial Courts to recall or review the issue of summons, subject to the provisions of Section 322 of Cr.P.C to deal with the order of issue of process where it is brought to the courts notice that it lacks jurisdiction to try the complaint. f) The provisions of Section 258 of Cr.P.C., is not applicable to the complaints under Section 138 of the Negotiable Instrument Act 1881. g) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. h) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e- mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the Nodal Officers wherever they are appointed for the specific purpose or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow up action should be taken. i) Wherever the summons are sent by registered post, the office may take the assistance of the website of Postal department and 'postal tracking information may be placed after sufficiency of service without waiting for the acknowledgment to be received. - 8 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 j) The Metropolitan Magistrate/Judicial Magistrate (MM/JM) Court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest in the interest of justice k) The Metropolitan Magistrate/Judicial Magistrate (MM/JM) Court, should direct the accused, when he furnish a bail bond, to ensure his appears to appearance during trial and ask him to take notice under Section 251 of Cr.P.C to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) of Negotiable Instruments Act, for re- calling a witness for cross-examination. cross-examination concerned must ensure l) The Metropolitan Magistrate/Judicial Magistrate (MM/JM) Court, re- examination-in-chief, examination of the complainant must be conducted within three months from the date of assigning the case. Metropolitan Magistrate/Judicial Magistrate (MM/JM) Court has option of accepting affidavits of witnesses, them orally. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to that effect by the Court. instead of examining m) The examination in chief, re-examination of the complainant or accused shall also be conducted through video conferencing as per Video Conferencing Rules, 2020. n) Where multiple complaints are pending between the same parties, as Section 219 of Cr.P.C., is applicable only to warrant trial cases, the court may club all the cases and record common trial and dispose of by a common judgment to save public time and multiplicity of proceedings in the interest of both the parties to the lis. - 9 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 Act, o) While dealing with the cases filed under Section 138 Metropolitan Magistrate/Judicial Magistrate (MM/JM), shall make every effort to settle the dispute through ADR method to dispose of the complaint at the earliest in the interest of justice to both the parties.” concerned

9. In view of the authoritative pronouncements of the Hon’ble Apex Court in directing all the criminal Courts which are dealing with the offence punishable under Section 138 of the Negotiable Instruments Act, purusuant to which the Committee of the Karnataka High Court formed in pursuance of WP(Crl) No.2/2020 (PIL-W) and SLP Crl.5464/2016 dated 16.04.2021 supra, it is needless to emphasize that at least henceforth, the Courts which are dealing with the offence under Section 138 of the Negotiable Instruments Act, is required to adhere to the directions issued by the Hon’ble Apex Court in the case of Indian Bank Association supra and in the light of practice directions issued by the Committee of this Court. - 10 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023

10. It has come to the notice of this Court in several matters, ignoring the directions issued by the Hon’ble Apex Court and ignoring the practice directions issued by the Committee constituted in pursuance of WP(Crl) No.2/2020 (PIL-W) and SLP Crl.5464/2016 dated

16.04.2021 supra, the proceedings are not conducted in prosecution of complaints under Section 138 of the Negotiable Instruments Act.

11. Accordingly, the following: i. ii. ORDER Revision petition is allowed. Impugned order passed in CC No.646/2017 dated 24.06.2022 is set aside on the condition that revision petitioner shall deposit 75% of the cheque amount (less the amount already deposited) on or before

10.01.2025. - 11 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 iii. Parties shall appear before the learned Trial Magistrate without further notice positively on 13.01.2025. iv. It is made clear that deposit of balance amount of the cheque is condition precedent for further participation in the trial. v. Learned Trail Magistrate shall proceed with the case strictly in accordance with the directions issued by the Hon’ble Apex Court in Indian Bank Association supra. vi. Amount deposited by the accused shall be kept in fixed deposit for the benefit of the successful party. vii. Taking note of the fact that criminal case is of the year 2017, trial shall be concluded on or before 30.04.2025. - 12 - NC: 2024:KHC:51935 CRL.RP No. 403 of 2023 Copy of this order be circulated by the Registrar (Judicial) to all the learned Trial Magistrates in the State who are dealing with the criminal case for the offence under Section 138 of the Negotiable Instruments Act through Judicial Academy after obtaining necessary orders from Hon’ble the Chief Justice. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 88 CT: BHK