A S IMPEX LIMITED Vs. DELHI HIGH COURT

JUDGEMENT

(1.) Chapter XVI was incorporated in the Negotiable Instruments Act, 1881 (hereinafter called the "Act"). The said chapter was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988) with effect from April, 1989. The purpose of inserting this chapter under which Section 138 falls was to give power to the Court to impose punishment in case the cheque issued, in whole or in part, of any debt or liability is returned by the Bank unpaid either because of the amount of money standing to the credit of that account is insufficient or it exceeds the amount arranged to be paid. Such action amounts to an offence punishable with an imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque, or with both. Section 139 of the Act deals with the presumption in favour of holder. Section 140 of the Act indicates the defences which may not be allowed in any prosecution under Section 138. Section 142 of the Act deals as to which Court can take cognizance of offences. Section 143 deals with the power of Court to try cases under Section 138 of the Act summarily. Sub-section [2] of Section 143 of the Act prescribes that the trial of a case as far as practicable be continued from day-today until its conclusion except for reason beyond control the Court adjourns the case. Sub-section (3) of Section 143 envisages that the trial under this section shall be conducted as expeditiously as possible and all endeavours should be made to conclude the trial within six months from the date of filing of the petition.

(2.) Keeping in view the intention and the mandate of the Legislature in mind that cases under the Act be concluded expeditiously, the High Court found that number of cases filed under Section 138 of the Act could not be disposed of expeditiously because of acute shortages of judicial officers at magisterial level. The High Court exercising its power on the administrative side transferred the cases under Section 138 of the Act which were pending as on 31st December, 2001 from the Court of Metropolitan Magistrates to the Court of Additional Sessions Judges. The impugned order was gazetted on 13th March, 2002. Pursuance to this Gazette Notification, the District Judge vide order dated 21st March, 2002 transferred the cases to be tried by Additional Sessions Judges.

(3.) It is this order of 21st March, 2002 which has been assailed by the petitioners, inter alia, on the grounds that, (i) the order passed by the High Court on the administrative side is wholly unconstitutional and illegal inasmuch as the same is violative of Article 14 and Article 21 of the Constitution of India; (ii) that no order under Section 407 of the Code could be passed. Moreover complaint under Section 138 of the Act can only be tried by the Court of Metropolitan Magistrate or Judicial Magistrate, First Class and by an other Court; (iii) that the complaint under Section 138 of the Act is a summon trial case as defined under Section 2(w) of the Code. Section 138 of the unamended Act provided for a maximum punishment of imprisonment of one year and after the amendment maximum punishment of imprisonment provided is two years, hence offence under Section 138 of the Act is not a warrant trial case but a summon trial case; (iv) that on combined reading of Sections 4 and 26 of the Code, read with Section 142(c) of the Act it is apparent that only the Metropolitan Magistrate or the Judicial Magistrate, First Class have exclusive jurisdiction to try the complaints under Section 138 of the Act. No jurisdiction vests in the Court of Additional Sessions Judge to try the complaint under Section 138 of the Act. In fact, the Legislature in its wisdom specifically provided that only the Court of Metropolitan Magistrate or the Judicial Magistrate, First Class would be competent to try cases under Section 138 of the Act. Complaints under Section 138 having been transferred to the Court of Additional Sessions Judge for being tried by them, the respondent No. 1 has committed violation of the provision of the Code. There is no provision under the Code which empowers the Court of Sessions Judges to try a summon case; (v) that speedy trial cannot form the basis of classification; (vi) that the impugned order has taken away the right of appeal of the petitioners to the Court of Session as envisaged under Section 374(3) of the Code and further the right of revision to the High Court under Section 397(1) of the Code from the judgment and order of the Court of Session; (vii) that there is violation of principle of natural justice and the order is liable to be struck down.