Allahabad High Court
Saket Bihari vs State Of U.P. And Another on 13 December, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:195559 Court No. - 79 Case :- APPLICATION U/S 482 No. - 37741 of 2024 Applicant :- Saket Bihari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinay Kumar Pal Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Vinay Kumar Pal, learned counsel for the applicant and Sri Pankaj Saxena, learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed to direct the Civil Judge (Senior Division)/F.T.C./A.C.J.M., Chitrakoot to decide the Complaint Case No.3489 of 2020, under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station- Fatehganj, District- Chitrakoot.
3. This matter was heard on 19.11.2024, 03.12.2024 and then on 06.12.2024.
4. On 19.11.2024, this court was not satisfied that the police had not executed the process against the accused issued by the court and directed the Superintendent of Police, Kaushambi to submit his affidavit. In compliance of order dated 19.11.2024, personal affidavit was filed by the Superintendent of Police, Kaushambi, mentioning therein that not a single warrant or letter has been received by the Kaushambi police. Therefore, this court vide order dated 03.12.2024 directed the District Judge, Chitrakoot to submit report regarding mode of issuance of summons, bailable warrant and non-bailable warrant as well as letters to Superintendent of Police, Kaushambi.
5. In pursuance of the letter dated 03.12.2024, District Judge, Chitrakoot has submitted report and mentioned therein that summons were sent to the accused on his address through registered post. When the letter was not returned back then bailable warrant as well as non-bailable warrant were issued along with letter to the Superintendent of Police, Kaushambi through ordinary post on 07.01.2023, 03.03.2023 and 14.07.2023. This court on perusal of the report found that the mode of service by which the warrants have been sent to the Superintendent of Poice, Kaushambi for execution was improper because as per Section-144 of the Act, 1881, summons and other process should have been sent through registered post but the same were sent by the concerned court through ordinary post. Thereafter, District Judge, Chitrakoot was also directed to conduct preliminary enquiry after seeking explanation from the concerned Presiding Officer vide order dated 06.12.2024. Copy of the order dated 06.12.2024 is being quoted as under:
"1. Heard Sri Vinay Kumar Pal, learned counsel for the applicant and Sri Pankaj Saxena, learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed to direct the Civil Judge (Senior Division)/F.T.C./A.C.J.M., Chitrakoot to decide the Complaint Case No.3489 of 2020, under Section 138 N.I. Act, Police Station- Fatehganj, District- Chitrakoot.
3. This matter was initially heard on 19.11.2024. On that date, the Court after perusal of the order sheet of the complaint in question, found that despite the issuance of bailable warrant and non-bailable warrant as well as letters to the Superintendent of Police, Kaushambi, presence of accused could not be ensured, therefore, S.P., Kaushambi was directed to file his personal affidavit explaining the negligence on the part of the police.
4. This matter was again taken up on 03.12.2024. On that date personal affidavit of S.P., Kaushambi was filed but the Court was not satisfied with the affidavit, for the reason, the S.P., Kaushambi clearly denied of receiving any bailable warrant, non-bailable warrant or any letter from the concerned court. Therefore, the Court directed the District Judge, Chitrakoot to conduct inquiry and submit report whether any warrant as well as letter to S.P., Kaushambi was issued by the court.
5. In pursuance of the order dated 03.12.2024, the District Judge, Chitrakoot has submitted his report dated 04.12.2024. In his report, the District Judge, Chitrakoot has clearly mentioned that initially summons were sent to the accused on his address through registered post and when the said registered post were not returned then bailable warrant was issued through ordinary post along with letter to S.P., Kaushambi. Thereafter non-bailable warrants as well as letters to S.P., Kaushambi were sent through ordinary post and this fact has also been verified from the process register. The relevant extract of the process register has also been annexed with this report, which shows that bailable warrants, non-bailable warrants as well as letters were sent to S.P., Kaushambi through ordinary post on 07.01.2023, 03.03.2023 and again on 14.07.2023. It was clearly mentioned in the report of District Judge, Chitrakoot that bailable warrant, non-bailable warrant as well as letters to S.P., Kaushambi were actually sent through ordinary post and entry of the same was mentioned in the process register. Therefore, averment made in the personal affidavit of the S.P., Kaushambi that no warrant or letter has been received from the court concerned prima facie appears to be incorrect.
6. From perusal of the report of District Judge, Chitrakoot, one startling fact also came into picture that bailable warrant and non-bailable warrant were sent to the S.P., Chitrakoot through ordinary post though as per Section 144 of N.I. Act, even the summons should be sent through speed post or courier service approved by the Court of Sessions.
7. To clarify this procedure, this Court personally summoned the Registrar General, High Court Allahabad, who appeared before the Court and apprised that if the summons or warrant initially sent through ordinary post then on subsequent date, if service is incomplete, then it should have been sent through registered post or approved courier service. Therefore, procedure adopted by the concerned court/Judicial Magistrate, who remain posted from 2022 to 2023, is contrary to the statutory provision and also shows his negligence to conclude the trial under N.I. Act expeditiously, despite the specific mandate as per Section 143(3) of N.I. Act.
8. In view of above, before issuing any direction for disciplinary proceeding, it would be appropriate to direct the District Judge, Chitrakoot to seek explanation from the concerned Magistrate or employee regarding his negligence for issuance of summons, warrants as well as letters to S.P., Kaushambi through ordinary post though it should have been sent through registered post as per Section 144 N.I. Act. The District Judge, Chitrakoot will submit his report before next date of listing.
9. Learned AGA also informed the Court that the accused has been arrested and produced before the court, therefore, non-bailable warrant has been executed against the accused. He further submitted that though the accused was granted bail on 04.12.2024 but he could not be released due to non-execution of bond.
10. In such circumstances, the court concerned may proceed to record statement of accused under Section 251 Cr.P.C. during his custody so that trial could be concluded expeditiously.
11. Put up this case as fresh on 13.12.2024.
12. In the meantime, learned AGA may also seek explanation from S.P., Kaushambi for the incorrect averment made in the affidavit regarding service of warrants as well as letters upon the S.P., Kaushambi.
13. Registrar (Compliance) is directed to send a copy of this order to the District Judge, Chitrakoot."
6. In pursuance of order dated 06.12.2024, District Judge, Chitrakoot has submitted his report dated 12.12.2024 along with the explanation of the concerned Presiding Officer. From perusal of the report of District Judge, Chitrakoot, it appears that Ms Vasundhara Sharma, had remained posted as Judicial Magistrate-Ist from 15.09.2022 to 20.04.2023 and thereafter Ms Anjalika Priyadarshni, Judicial Magistrate-Ist, remained posted from 29.05.2023 to 02.03.2024. Both of them submitted their explanation that they have issued bailable warrant and non-bailable warrant as per Section-78 Cr.P.C. to Superintendent of Police, Kaushambi through ordinary post and being new Judicial Officer, if they have committed any negligency then they may be pardoned. It further appears from the report of District Judge, Chitrakoot that other staff of the court including Anil Kumar and Purusharth Dwivedi, both are Junior Assistants, have submitted that because of negligence and inexperience, they sent process under Section-78 Cr.P.C. to Superintendent of Police, Kaushambi through ordinary post instead of registered post as required by Section-144 of the Act, 1881.
7. This court taking lenient view of the matter is not expressing any opinion about the conduct of the concerned Judicial Officers as well as the concerned staff. However this court came across number of cases wherein this court found that this negligency on the part of Presiding Officer has become a routine affairs in the proceeding u/s 138 of the Act, 1881. Therefore, Director of Judicial Training & Research Institute, Lucknow is directed to conduct refresher course to Judicial Officers regarding the proceeding under the Act, 1881 either through video conferencing or through physical mode, so that all the Judicial Officers specially newly appointed Judicial Officers may be well aware about the proper procedure for the proceeding under the Act, 1881.
8. From perusal of the report of the District Judge, Chitrakoot, it is also clear that accused has appeared before the court and his statement under Section 251 Cr.P.C. has been recorded and matter has been referred to the Mediation Centre on the request of the accused.
9. The Apex Court in the case of Indian Bank Association and others vs. Union of India and others reported in (2014) 5 SCC 590, has issued direction for expeditious disposal of the cases under the Act, 1881. Paragraph Nos. 22, 23 and 24 of the aforesaid judgement are being quoted as under:
"22. We notice, considering all those aspects, few High Courts of the country have laid down certain procedures for speedy disposal of cases under Section 138 of the Negotiable Instruments Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. v. Mannalal Khandelwal, Indo International Ltd. v. State of Maharashtra (2005) 44 Civil CC and Harischandra Biyani v. Stock Holding Corpn. of India Ltd. (2006) 4 MhLJ 381, the judgment of the Calcutta High Court in Magma Leasing Ltd. v. State of West Bengal and others (2007) 3 CHN 574 and the judgment of the Delhi High Court in Rajesh Agarwal v. State and another (2010) ILR 6 Delhi 610.
Directions
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 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.
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 to 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 summon 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 appearance during trial and ask him to take notice under Section 251 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) for recalling a witness for cross-examination.
23.5. The court concerned must ensure that examination-in-chief, cross-examination and 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 accused must be available for cross-examination as and when there is direction to this effect by the court.
24. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the above-mentioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. Writ Petition is, accordingly, disposed of, as above."
10. The Apex Court in the case of In Re: Expeditious Trial of Cases under Section 138 of the Act, 1881, reported in 2021 SCC Online 325 has already issued following directions for expeditious trial u/s 138 of the Act, 1881 as under:-
24. The upshot of the above discussion leads us to the following conclusions:
1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.
2) 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.
3) For the conduct of inquiry under Section 202 of the Code, evidence of 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.
4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.
5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code 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.
7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.
11. From the above mentioned judgements of Apex Court, it is clear that the Apex Court for expeditious disposal of cases under the Act, 1881 has issued several directions which the concerned court/Magistrate has to follow while deciding the cases under the Act, 1881. From the observations of the Apex Court as well as analysis of Sections 138 & 143 of the Act, 1881, it is expedient that all the proceedings under the Act, 1881 should be concluded expeditiously without going into unnecessary technicality.
12. Considering the aforesaid judgements, this Court directs the Civil Judge (Senior Division)/F.T.C./A.C.J.M., Chitrakoot to decide the Complaint Case No.3489 of 2020, under Section 138 of the Act, 1881, Police Station- Fatehganj, District- Chitrakoot, keeping in mind the direction of the Apex Court in above mentioned cases, expeditiously preferably within a period of six months from the date of receipt of certified copy of this order, strictly in accordance with statutory provision of Sections 143(2) and 143(3) of the Act, 1881, if there is no legal impediment.
13. It is also directed to the concerned court that for ensuring the presence of accused during trial, it should not hesitate to take coercive measures provided under Cr.P.C.
14. With the aforesaid direction, the application is disposed of.
15. Registrar (Compliance) is directed to send copy of this order to the Director of Judicial Training & Research Institute, Lucknow for appropriate action.
Order Date :- 13.12.2024 S.Chaurasia