Concerned with the large number of cases filed under Section 138 of the Negotiable Instruments Act, 1881 pending at various levels, a Division Bench of the Supreme Court consisting of the Chief Justice of India and L. Nageswara Rao, J. decided to examine the reasons for the delay in disposal of these cases in In Re: Expeditious Trial of Cases Under Section 138 OF N.I. ACT 1881[ SUO MOTO WRIT PETITION (CRL.) NO.2 OF 2020]
Chapter XVII inserted in the Act, containing Sections 138 to 142, came into force on 01.04.1989. Dishonour of cheques for insufficiency of funds was made punishable with imprisonment for a term of one year or with fine which may extend to twice the amount of the cheque as per Section 138. Section 139 dealt with the presumption in favour of the holder that the cheque received was for the discharge, in whole or in part, of any debt or other liability. The defence which may not be allowed in a prosecution under Section 138 of the Act is governed by Section 140. Section 141 pertains to offences by companies. Section 142 lays down conditions under which cognizance of offences may be taken under Section 138. Over the years, courts were inundated with complaints filed under Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of years Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of years
The Court observed that the words “as far as may be” in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Cr.P.C. and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is not permissible and a judge must not rewrite a statute, neither to enlarge nor to contract it. The judge is believed to interpret and apply the law, not to change it to meet the Judge’s idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.
The bench scrutinized the judgments of this Court in Adalat Prasad (2004) 7 SCC 338 and Subramanium Sethuraman (2004)13 SCC 324 and warranted that the Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. The Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation in the above cases. However, amendment to the Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted by the Court which shall look into this aspect as well.
The court held that “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. 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.” Further the bench recommended 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.