Section 138 of the Negotiable Instruments Act, 1881 (“Act”) deals with the offence pertaining to dishonour of cheque for insufficiency, etc., of funds in the drawer’s account on which the cheque is drawn for the discharge of any legally enforceable debt or other liability. The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 inserted in the Act, new Chapter XVII comprising sections 138 to 142 with effect from 1 April, 1989. These provisions were incorporated in the Act with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument.
Due to large number of pendency of dishonoured cheque cases (over 38 lacs), the entire credibility of the business within and outside the country is suffering a serious setback. Dishonour of cheque by a Bank causes incalculable loss, injury and inconvenience to the payee and the credibility of issuance of cheque is also being eroded to a large extent. The very purpose of the above amendments made in the Act for speedy disposal of dishonoured cheque cases is being lost.
The purpose of this Report is to recommend setting up of Fast Track Courts at Magisterial level with high-tech facilities. Huge backlog of cheque bouncing or dishonoured cheque cases need to be speedily disposed of through this measure, lest the litigants lose faith in the judicial system. Unless there is sufficient number of courts for resolving cheque bouncing disputes speedily and efficiently, the problem will continue to be alarming. Commercial circles in India and abroad must be assured a fast and efficient judicial system in India.
The Bombay High Court in KSL & Indutries Ltd.20 deemed it appropriate, in order to accomplish the underlying object of the Act, to pass the following directions:
- Experience reveals that enormous time is spent at the stage of summoning/serving the accused. The court must adopt pragmatic methods and must serve them by all possible means of service, including e-mail…. The Court must ensure that the accused are not permitted to abuse the system.
- The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be concluded within three months of assigning the case….
- Complaints must be disposed of as expeditiously as possible, and in any event, within six months from the date when the presence of the accused has been secured….
Several central statutes including the Negotiable Instruments Act have contributed more than 50% to 60% of the litigation in the trial courts. These enactments are referable to List I or List III of the Seventh Schedule of the Constitution of India. Article 247 of the Constitution enables the Union Government to establish additional courts for better administration of laws made by Parliament or existing laws with respect to a matter enumerated in the Union List.
The Constitution of India through Article 14 guarantees equality before law and equal protection of laws. It follows from this that equal opportunity must also be afforded for access to justice. It is not sufficient that law treats all persons equally, irrespective of the prevalent inequalities. But law must function in such a way that all the people have access to justice in spite of the economic disparities. The words ‘access to justice’ focus on two basic purposes of the legal system.
- the system must be equally accessible to all
- it must lead to results that are individually and socially just.
Traditional concept of “access to justice” as understood by common man is access to courts of law. For a common man, a court is the place where justice is meted out. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy and ignorance etc.
To get justice through courts, one must go through the complex and costly procedures of litigation. One has to bear the costs of litigation including court fee, stamp duties etc. and also the lawyers’ fees. Apart from these, the litigant loses much more in financial terms such as loss of income arising from attending the court hearings. A poor litigant who is barely able to feed himself will never be able to get justice or obtain redress for a wrong done to him through courts. Further, a large part of the population in India is illiterate and live in abject poverty. Therefore, they are totally ignorant about the court procedures and will be terrified and confused when faced with the judicial machinery. Thus, most of the citizens of India are not in a position to enforce their rights, constitutional or legal, which in effect generates inequality contrary to the guarantees of Part III of the constitution.
….infrastructure for the Fast Track Courts is to be provided by the State Government and the selection of the Judges is to be made by the High Court. The scheme includes construction of new court rooms, appointment of ad hoc judges, Public Prosecutors and supporting staff and arrangement for quick processors. It would be appropriate to have, our in-service Judicial Officers to be appointed in these Courts, after giving them promotions on purely temporary ad hoc basis initially for two years, extendable by another two years or till they are promoted on regular basis. These appointments shall be made as far as possible in Fast Track Courts. Their future regular promotion shall depend on their performance in these Courts. Those Officers who are not found fit to travel on fast track, shall be off-loaded and sent back to their regular cadre. It is a joint venture of the Central Government, State Government and the High Court to tackle the problem on war footing. It is needless to say that realization of real justice needs cooperation of all the three wings of the Government with one single aim to reach out justice to individuals and thus, maintain rule of law. Interaction between the three wings of the Government is necessary to improve the justice delivery system and such co-operation should be seen in day-to-day dispensation of justice. Sessions trials in several Courts in the country are held up because of unwanted adjournments on just asking either by the defence counsel or Public Prosecutor, not examining the witnesses within the scheduled time and the non-cooperation of the prosecuting agency. There is a general complaint that the Police has no sufficient time or force, to serve in time the summons on the witnesses and keep the undertrial prisoners present in the Court, at the time of trial. There are instances coming to light that the offenders are sentenced but sentences imposed, are not executed because the convicts had already jumped bail and the police has no will and time to search them out.
Legal experts are unanimous in their opinion that the present system of criminal jurisprudence is destined to fail if the backlog of cases is not substantially reduced. Recently, the Law Commission of India mooted the concept of “plea-bargaining” – pre-trial negotiations between the accused and the prosecution in which if the accused agrees to plead guilty for the charges leveled against him he would get in exchange certain concessions as a quid pro quo, by taking a lenient view by the courts, particularly in cases of lesser gravity. Actually, the courts have been practically following such a practice, for several years, now.
A speedy trial is not only required to give quick justice but it is also an integral part of the fundamental right of life and liberty, as envisaged in Article 21 of the Constitution of India.
The Law Commission of India is of the firm opinion that considering the alarming situation of the pendency of cases and the constitutional rights.
The Law Commission of India, accordingly, recommend as under:
- Fast Track Courts of Magistrates should be created to dispose of the dishonoured cheque cases under section 138 of the Negotiable Instruments Act, 1881;
- The Central Government and State Governments must provide necessary funds to meet the expenditure involved in the creation of Fast Track Courts, supporting staff and other infrastructure.