Amend Section 138 Negotiable Instruments Act ;Magistrates Should Record Reasons Before Converting Summary Trial To Summons Trial: SC
Re Expeditious Trial Of Cases Under Section 138 of N.I Act . Citation:LL 2021 SC 217
The second proviso to Section 143 of the Negotiable Instruments Act empowers the Magistrate
to convert the summary trial to summons trial, if he is of the opinion that a sentence of
imprisonment exceeding one year may have to be passed or that it is undesirable to try the case
summarily, after recording reasons.'
A Constitution Bench of the Supreme Court comprising Chief Justice of India SA Bobde,
Justices L Nageswara Rao, BR Gavai, AS Bopanna and S Ravindra Bhatt; has directed that
Magistrates have to record reasons before converting trial of complaints under Section 138
Negotiable Instruments Act from summary trial to summons trial in exercise of power under
the second proviso to Section 143 of the Act.
The court noted that such conversion from summary trial to summons trial is being done
mechanically without reasons being recorded and the same is contributing to the delay in the
disposal of cases.
“ 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 High Courts may issue practice
directions to the Magistrates to record reasons before converting trial of complaints under
Section 138 from summary trials to summons trial in exercise of power under the second
proviso to Section 143 of the Act", the bench observed.
The Bench directed that Section 258 of the Code of Criminal Procedure is not applicable to
complaints under Section 138 of the Negotiable Instruments Act and the Magistrates are not
empowered to discharge the accused if the complainant is compensated to the satisfaction of
the court. It also requested the High Courts to issue practice directions to the Trial Courts to
allow one trial for multiple cases from single transaction.
It was Further reiterated that there is no inherent power of Trial Courts to review or recall the
issue of summons and that Judgments of the Court in Adalat Prasad v Rooplal Jindal and others
(2004) 7 SCC 338 and Subramanium Sethuraman v State of Maharashtra (2004) 13 SCC 324
have interpreted the law correctly and we reiterate that 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 complaint.
The Supreme Court has recommended an amendment empowering Magistrate to recall
summons in respect of complaints under Section 138 Negotiable Instrument Act, however this
amendment may be considered only on the recommendation of the committee constituted in
this regard.
