Pre And Post-Summons Online Mediation, Summons Via SMS/WhatsApp, Disclosure Of Defence Before Trial [Read Amici Reports On Fast Disposal Of Cheque Cases]

Senior Advocate Sidharth Luthra and Advocate K Parameshwar, the amici curiae appointed by the Supreme Court to suggest steps to expedite the trial of cheque dishonour cases under Section 138 of the Negotiable Instruments Act, have submitted a preliminary report before the SC on October 11.Yesterday, a bench headed by the Chief Justice of India sought the responses of all High Courts to the preliminary report of the amici in the suo moto case 'In Re :Expeditious Trial of Cases Under Section 138 NI Act'.Some of the key suggestions made by the amici curiae are as follows :Banks be asked to provide contact details of drawer of the cheque in the dishonour slipThe amici noted that many cases remained pending due to the inability to serve summons on the accused. More than 51 percent of the cases relating to cheque bounce are pending in the courts because of the solitary reason of non-presence of the accused.To reduce this difficulty, the report has suggested that the banks be directed to provide the phone number and e-mail address of the drawer of the cheque in the dishonour slip."Given the fact that significant percentage of the cases are pending at the stage of service of summons, due to lack of current address and whereabouts of the Accused, it would be expedient to direct that Banks, while issuing a dishonour slips, under Section 146, to disclose the current mobile number, email address and postal address of the drawer of the Cheque". Electronic means to serve summonsService of summons may be effected through SMS, WhatsApp, on the mobile number, email and postal address of the Accused. The Union of India, the Reserve Bank of India and the Indian Banks Association ought to create a Nodal Service Agency for effective service of summons through electronic processes. The e-committee of the Supreme Court may also be consulted in this regard.Encourage pre-litigation mediationThe Lok Adalats under the Legal Services Act, 1987 ought to be empowered to conduct prelitigation mediation under Section 19(5) of the said Act in respect of cases under Section 138 NI Act. The report suggests that legislative amendments might be required to the Negotiable Instruments Act, 1888, as there is a strict statutory timeline given for issuing notice, filing of complaint etc. Mediation may not be possible within such a short span of time."...in the case of Section 138, legal complications could arise due to the period of one month, prescribed under Section 142, for taking cognisance of the offence after the cause of action has arisen under Clause(c) to the Proviso to Section 138. In other words, pre-litigation mediation notices and the process would have to be completed within the said one month in order to comply with the period under Section 142. Therefore, in our considered opinion, unless and until suitable legislative amendments are made to the Negotiable Instruments Act, 1881, it may be difficult to effectively implement pre-litigation mediation in cases under Section 138", the report said. Till such a legislative intervention is made, the Magistrates could while issuing summons, direct the parties to resort to post-summons but pre-trial mediation. In such cases, the summons may reflect a date for mediation and also a date for trial. A Standard Operating Procedure for post-summons mediation will have to be developed in consultation with the relevant stakeholders keeping in mind that the mediation is time-bound, cost-effective and does not become another tool in the hands of the Accused to delay the trial. Attach bank accounts of absconding accusedIf the person against whom a warrant has been issued has absconded or has concealed himself such that the warrant cannot be executed, Magistrates could order attachment of the bank accounts of the Accused to the extent of the cheque amount by passing an order under Section 83, CrPC.Accused be asked to reveal the nature of defence before trial to avoid trial of frivolous casesThe Accused ought to be directed to disclose the nature of his defence before the trial is converted from a summary trial to a summons trial. This requirement ensures that the Accused is not permitted, for frivolous reasons, to prolong the trial.The Magistrate ought to, while converting the case into a summons trial, record cogent and sufficient reasons for exercise of its discretion. The exercise of this discretion ought to be preceded by an order directing the Accused to not just disclose his plea in relation to the offence but also to disclose the grounds of his defence."It must be noted that under Section 251 of the Code of Criminal Procedure, 1973, the Magistrate is empowered, in summons cases, to enquire from the Accused, the nature of his defence. Therefore, it would be logical that the Accused is directed to disclose the nature of his defence before the trial is converted from a summary trial to a summons trial. This requirement ensures that the Accused is not permitted, for frivolous reasons, to prolong the...

Pre And Post-Summons Online Mediation, Summons Via SMS/WhatsApp, Disclosure Of Defence Before Trial [Read Amici Reports On Fast Disposal Of Cheque Cases]

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