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An estimated 4-minute read

Delhi High Court lays down procedure to be followed for offences u/s 138 N.I. Act

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In a judgment that can go a long way in clearing the backlog of cases dealing with offences u/s 138 of the N.I. Act, the Delhi High Court directed petitioners (alleged offenders) to not bother the High Court for no reason and go to the court of the Metropolitan Magistrate for the redressal of their grievances.

Several petitions were filed in the High Court under Section 482 Cr.P.C. for quashing of complaints under section 138N.I. Act on the ground that learned MMs cannot recall their own orders of summoning and it is the High Court that should consider that the complaint under section 138 of N.I. Act was not maintainable against the petitioners. The Court noted that the quashing of summoning order was being sought not on the ground that complaint and evidence adduced by the complainant before MM do not disclose commission of offence by the petitioner, but, on the ground that petitioner had various defenses like - the petitioner was not the Director of the company at the time when cheque was issued or when cheque was dishonoured; the petitioner was not responsible for conduct of business of company/firms, the petitioner was only a sleeping partner in the partnership firm, the issuance of cheque and its dishonour was without the knowledge of the petitioner, that cheque was issued without consideration, the cheque was issued as security, the cheque though issued by the petitioner was not from his own account but from some other account, the petitioner was a Director but had resigned from Directorship at the relevant time etc..

The Court also took note that most of the petitioners were affluent people who considered it below their dignity to go to lower court and came rushing to the High Court on mere passing of a summoning order. The Court clarified that Section 143 of the NI Act, as amended in 2002, specifically provides that all offences under this chapter of N.I. Act are to be tried by Judicial Magistrate of First Class or MM in accordance with summary trial provisions of Sections 262 to 265 Cr. P.C. (both inclusive). It was also noted that the legislature had provided for summary trial for the speedy disposal of cases dealing with Section 138 of the NI Act and Section 145 mandates that evidence of complainant may be given by him by way of affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court. This also makes clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. The complainant is not required to be recalled and re-examined after summoning of accused unless the MM passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under section 145(2) of N.I. Act suo moto by the Court.

After discussing the nature of the offence of "dishonoured cheques" and the differences between a summary trial and a summon trial, the Court laid down the procedure to be followed for offences u/s 138 N.I. Act as follows: -

  1. On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out.
  2. If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr. P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence.
  3. If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.
  4. To hear arguments of both sides.
  5. To pass order/judgment.

The Court ordered that since summoning order in all the cases before it had been issued, it was now the obligation of the petitioners to take notice under section 251 of Cr. P.C., if not already taken, and enter their plea of defence before the concerned MM court and make an application, if they want to recall any witness. The petitions were dismissed and the petitioners were directed to appear before the Metropolitan Magistrate so that trial could proceed as directed.


Judgment Day and Date: - Wednesday, 28/07/2010

Judge: - Justice Shiv Narayan Dhingra

Court: - Delhi High Court

The judgment can be viewed at http://bit.ly/a5hRoa

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