Madhya Pradesh High Court
Steel Tubes Of India vs Steel Authority Of India on 22 March, 2005
Equivalent citations: I(2007)BC525, 2006CRILJ1988
ORDER S.L. Kochar, J.
1. This order also governs disposal of MCrC Nos. 291/05 to 297/05 filed by Steel Tubes of India v. Steel Authority of India.
2. The contention of the learned Counsel for the applicant is that the non-applicant / complainant Steel Authority of India Limited has filed eight cases for dishonour of eight cheques, in each cheque the amount of one crore or more than one crores is involved. The complainant in his complaints, as well as statements recorded under Section 200 of the Code of Criminal Procedure (for short, "the Code") has not disclosed as to against which liability or debt, the cheque was issued in his favour by the applicant: The applicant herein, filed an application under Section 91 of the Code seeking direction before the trial Court for production of documents by the non applicant/complainant regarding transaction concerning with the cheques issued by the applicant and their dishonour by the Bank, but according to the applicant, some documents were filled in and the same were not filed. The applicant was not satisfied with the documents filed by the non applicant therefore, he has filed the application under Section 259 of the Code praying for conversion of summons case into warrant case. He submitted before the trial Court that looking to the huge amount involved and number of documents required to be adduced by either party, the case may be tried as warrant case. This prayer of the applicant has been turned down by the trial Court in all eight cases. Against that order dated 4-10-2004 passed by the trial Court, the applicant went up in revision and the learned lower revisional Court has also dismissed the revision by the impugned orders. That is how the applicant has approached this Court by filing petition under Section 482 of the Code.
3. The contention of the learned Counsel for the applicant/accused is that summons case can be tried as warrant case and in the Code of 1973 specific provision in this regard is prescribed i.e. Section 259. This provision is prescribed in Chapter 20 of the Code. Learned counsel has submitted that the application of the applicant has been turned down on wrong premises and the learned Courts below have failed to consider real implication of Section 259 of the Code and intention of legislature. According to him, if transaction between the parties is relating to the huge amount and there were several transactions between the parties as well as for proving the transaction number of documents would be required by the complainant as well as the applicant/accused to adduce in evidence, in such circumstances, summons case should be tried as warrant case so that effective opportunity would be given to all parties to prove their case in accordance with law and Court would also be facilitated to dig out the truth and come to right conclusion.
4. Learned Counsel has submitted that he could not lay hands on any decision of the Apex Court or even by any High Court on this point. However, he placed reliance on Sohani's commentary on the Code of Criminal Procedure, 1973 18th Edition 1985 (3) 2865. The relevant paragraph is quoted as under "
The only guideline for the Magistrate to exercise his discretion under this section is the interests of justice. "Interests of justice" is, however, a very flexible expression, which may not provide any dependable or decisive guide to the Magistrate. The circumstances which the Magistrate may take into consideration in arriving at his decision in this respect may be--
(i) the nature of the offence, simple or complicated:
(ii) the nature of the evidence, again just the statements of a few witnesses or lengthy statements coupled with mass of documentary evidence;
(iii) the number of the accused and the charges against them.
5. Having heard learned Counsel for the applicant and after perusing the impugned order and other documents filed by the learned Counsel for the applicant as well as provision under Section 259 of the Code, this Court is of the opinion that no case is made out for converting the complaint ease filed by the non applicant pending before the trial Court into warrant case. Before dealing with submissions of the learned Counsel for the appellant it would be apt to consider the aims and object of the NI Act which are as follows:
The Negotiable Instruments Act 1981 (for short "the Act") amended by the Banking Financial Institutions and Negotiable Instrument Laws (Amendment) Act, 1988, wherein a new Chapter XVII was incorporated by Act No. 66 of 1983 with effect from 1-4-1989 for penalties in case of dishonour of cheques due to insufficiency of funds in the account of drawer of cheque. Despite civil remedy, Section 138 intended to prevent dishonour on the part of the drawer of Negotiable Instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce payee or holder In due course to act upon it. The remedy available in a Civil Court is a long drawn matter and unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee (See 2004 Cri LJ 664, Goa Plast (P) Ltd. v. Chicko Ursula-D'Souza.)
6. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Act namely Sections 138 to 142 have been found deficient in dealing with dishonour of cheques. Notionally the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. Therefore, considering the recommendations of the Working Group along with other Representations from various institutions and Organizations were examined by the Government in consultation with the Reserve Bank of India and other legal experts. There was further Amendment in the Act by the Negotiable Instrument (Amendment and Miscellaneous Provisions) Act, 2002 (Act No. 55 of 2004) with effect from 6-2-2003.
7. The amendment in the Act are aimed inter alia at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and cheque in an electronic form as well as exempting an official nominee. Director from prosecution under the Negotiable Instruments Act, 1881. The other enactments i.e. the Bankers Books Evidence Act, 1891 and Information Technology Act, 2000 have also been amended by the Act No. 55 of 2002. The main aims and objects, for creation of Chapter XVII and further amendment therein (ibid) is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts of or the reason that it exceeds the arrangement made by the drawer, with adequate safeguards to prevent of honest drawers.
8. The point raised by the learned Counsel for the applicant in all these petitions i.e. conversion of summons case into warrant case tested on an anvil of aims, objections and reasons, does not stand in favour of the applicant. The complaint was filed in the year 2000 and yet plea of accused is not recorded. During this period, the Act has been amended by the Act No. 55 of 2002 came into force with effect from 6-2-2000. By this amendment, new provision i.e. Sections 143 to 147 have been incorporated. All these provisions are regarding procedure. . It is well settled principle of interpretation of statute that if in the statute it is not mentioned specifically about the application of provision restrospectively or prospectively then the procedural provision will have retrospective effect in the pending cases. Section 143 gives power to the Court to try cases summarily. This section has a mandatory effect and the provisions start from non abstaining clause. This means that provisions of Section 259 of the Code regarding warrant trial shall have no application in the case for trying the offence falling under the Act. This is further strengthened by the provisions of Sections 4 and 5 of the Code. Section 4 of the Code says that when in the Statute there is specific provision for trying a particular offence of the said Statute then the provision of the Code shall not apply and the Special Provisions of the Statute or law that is provisions under Section 143 of the Act is saved by saving provision of Section 5 of the Code. Sub-section (3) of Section 143 of the Code has also saved for expeditious trial and endeavour shall be made to conclude trial within six months from the date of filing of complaint. There is no room of doubt that for the purposes of trial an offence falling under the Act, provisions of summary trial Sections 262 to 265 of the Code would be applicable and the summary trial cannot be converted in the warrant trial. Therefore, arguments advanced by the learned Counsel for application of summary trial or summons trial into warrant trial would have no application for the purpose of trying the cases falling under Section 138 of the Act.
9. Apart from this, legal and factual position of conversion of cases filed by the non-applicant into warrant cases would not file within three categories as enumerated in Sohani's Commentary mentioned in para 4 hereinabove. The nature of offence is of simple and not complicated that is why Statute, prior to 6-2-2003 has prescribed the procedure of summons trial and after amendment by Act No. 5 of 2002 with effect from 6-2-2003 given power to the Court to try the cases summarily. The evidence adduced by the parties could be by way of filing the affidavit as per provision under Section 145 of the Act and on the application of the prosecution or the accused the Court may summon or examine in person giving the evidence as to the facts contained there under. Because of simple nature of offence and little number of witnesses and documents which required to be proved. The large number of accused in the trial would not make any difference and obstruction in summary trial/or summons trial. In view of provisions of Section 146, Court shall presume the fact of dishonour and such cheque on the production of banks slip or memo having thereon the official marking denoting that the cheque has been dishonoured unless and until such fact is disapproved.
10. This provision shows that examination of concerned bank employee to prove banks' slip or memo is also not necessary or mandatory.
11. To understand the spirit, of provisions from Sections 138 to 147 of the Act, Section 139 plays vital role. The provision of this section given power to the Court to presume unless the trial is proved that the holder of the cheque received cheque of the nature referred to in Section 138 for discharge in whole or in part or in debt or other liability. The burden is on the drawer to rebut this presumption. The Supreme Court exhaustively considered object behind insertion of Chapter XVI in the Act specially Sections 138 and 139 in the case of Goa Plast Pvt. Ltd. v. Chicago Ursula D'Souza 2004 SCC (Cri) 499 : 2004 Cri LJ 664. Profitably, these can also be looked into (Joseph Jose v. J. Baby, Puthuval Pura Vidom Poothoppu 2002 Cri LJ 4392 wherein the Supreme Court has ruled that burden of proof as to cheque has not been issued for legal debt or liability, is always on accused. In this view of the matter, complainant is not required to adduce number of witnesses and bulk of documentary evidence.
12. Apart from the facts and legal position stated hereinabove, these petitions are under Section 482, Cr.P.C. wherein inherent powers of this Court is to be exercised sparingly and rarest in rare case, petitions have been filed against concurrent findings of the Courts below rejecting the prayer of the applicant to convert summons case into warrant case. Therefore, this Court does not find any abuse of process of Court of law to invoke inherent powers in favour of the applicant. Thus, the petitions are not having any merit and substance and the same are hereby dismissed.
13. Copy of this order be placed in the aforesaid Misc. Criminal Cases.