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DIRECTIONS OF THE HON'BLE SUPREME COURT

IN SUO-MOTU WRIT PETITION (CRI) NO.2/2020 DATED 16/04/2021
FOR EXPEDITIOUS TRIAL OF 138 N.I.ACT CASES

1. The discretion conferred on the Magistrate by the second

proviso to Section 143 is to be exercised with due care and caution, after
recording reasons for converting the trial of the complaint from
summary trial to summons trial. Otherwise, the purpose for which
Section 143 of the Act has been introduced would be defeated.
The Hon'ble 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. In view of the judgments of the Hon'ble Supreme Court in

Vijay Dhanuka, Abhijit Pawar and Birla Corporation, the inquiry to
be held by the Magistrate before issuance of summons to the accused
residing outside the jurisdiction of the Court cannot be dispensed with.
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. Section 202 (2) of the Code is inapplicable to complaints

under Section 138 in respect of examination of witnesses on oath. The
evidence of witnesses on behalf of the complainant shall be permitted
on affidavit. If the Magistrate holds an inquiry himself, it is not
compulsory that he should examine witnesses. In suitable cases, the
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Magistrate can examine documents for satisfaction as to the sufficiency

of grounds for proceeding under Section 202.
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. There is no ambiguity in Section 220 in accordance with

which several cheques issued as a part of the same transaction can be
the subject matter of one trial.

5. The Hon'ble High Courts are requested to issue practice

directions to the Trial Courts to treat service of summons in one
complaint 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. 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 do not lay down correct law.

7. Judgments of the Hon'ble Supreme Court in Adalat Prasad

and Subramanium Sethuraman have interpreted the law correctly.
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
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complaint. In case the Trial Court is informed that it lacks jurisdiction to

issue process for complaints under Section 138 of the Act, the
proceedings shall be stayed and the case shall be submitted to the Chief
Judicial Magistrate or such other Magistrate having jurisdiction.

8. The Courts before which appeals against judgments in

complaints under Section 138 of the Act are pending should be directed
to make an effort to settle the disputes through mediation.

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