IN THE COURT OF SH. RAKESH KUMAR SINGH: METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL: ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI CC No.- 787/10 [PRECEDENT] 24.12.2010 ORDER
Preface Hon'ble Mr. Justice [ENTITY] in [PRECEDENT] has observed that:
"A man cannot obstinately cling to the same ideas and concepts all his life. As [ENTITY] said in his essay on "Self- Reliance", "A foolish consistency is the hobgoblin of little minds". Man is by nature ever restless, ever discontent, ever seeking something new, ever dissatisfied with what he has. m is inherent trait in the nature of man is reflected in the society in which he lives for a society is a conglomerate of men who live in it. Just as man by nature is dissatisfied, so is society. Just as man seeks something new, ever hoping that a change will bring about something better, so does society. Old values, old ideologies and old systems are thus replaced by new ideologies, a new set of values and a new system, they in their turn to be replaced by different ideologies, different values and a different system. The ideas that seem revolutionary become outmoded with the passage of time and the heresies of today become the dogmas of tomorrow. What proves to be adequate and suited to the needs of a society at a given time and in particular circumstances turns out to be wholly unsuited and inadequate in different times and under different circumstances."
Principal issue
2. I am called upon to decide a very significant controversy involving the scope and limitations of [SECTION] [ACT]. and 145 [ACT].
3. Accused has refused to disclose his defence on being summoned to face a charge for the offence punishable u/[SECTION] [ACT]. He has raised an objection that he can not be forced to disclose his defence since he has a right of silence. 3.1. Ld. counsel for the accused placed reliance upon a judgment of Hon'ble High Court of Delhi in [ENTITY] vs State 123 (2005) DLT 136. 3.2. Ld. counsel has vehemently submitted that this court can not follow the law laid down by the Hon'ble High Court of Delhi in [ENTITY] vs State (28.07.2010) since it has not considered the earlier decision. It is the contention of the Ld. Counsel that both the decisions are rendered by single benches and as per settled law, the earlier judgment shall prevail.
4. Submissions and contentions of the Ld. Counsel can be described for the sake of convenience as under:
i. Examination of accused can not be done before giving him an opportunity to cross examine the complainant's witnesses; ii. At the stage of notice u/[SECTION] [ACT], accused can only be asked as to whether he wants to plead guilty or has any defence;
iii. Accused has a right to silence; iv. The law laid down by the Hon'ble High Court of Delhi in
[ENTITY] vs State (28.07.2010) being per incurriam can not be followed;
5. At the first blush, contentions of the Ld. Counsel seem to be attractive, however, do not stand a minute scrutiny. None of the contentions raised by the Ld. Counsel holds water.
6. I propose to deal with all the contentions one by one. Issue of cross examination
7. [SECTION] [ACT] reads as under:
"145. Evidence on affidavit.-
(1) Notwithstanding anything contained in the [ACT], the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
7.1. It is clear that the evidence by way of affidavit given at the stage of pre summoning can be read in evidence in the trial.
7.2. Such witness can not be summoned unless an application is made by the accused (at this stage, there is no necessity to refer the right and discretion of the complainant and the Court).
7.3. It is apt to quote Hon'ble Supreme Court in [PRECEDENT]:
"What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of [SECTION] and having regard to the object and purpose of the entire scheme of [SECTION]."
7.4. Here itself it will be useful to note following objects and reasons with which [SECTION] of the [ACT] has been introduced in the Act:
"The existing provisions in the [ACT] namely, [SECTION] in [SECTION] have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed in the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act."
7.5. Now the question is at what stage an application u/[SECTION] can be made? 7.6. Stages of the proceeding when accused is present:
i. Acquisition explained over to the accused; ii. Plea of the accused; iii. Admission denial of the documents of the complainant; iv. Complainant's evidence; v. Examination of the accused; vi. Documents being placed on record by the accused; vii. Admission denial of the documents of the accused; viii. Defence evidence; ix. Arguments; x. Judgment. Reverse reasoning
7.7. No doubt when the accused makes an application, the Court has to summon the witness. However, it does not stand to reason that there can not be any restriction in respect of making of such application. Reason is obvious.
If accused makes an application at the stage when the judgment is to be pronounced, will the Court be powerless to dismiss such application? No one will answer the question in the negative.
7.8. The second question is can such application be made at the time of arguments?
No. 7.9. The third question is can such application be made at the stage when the accused is required to lead defence evidence? I am afraid that such application if allowed would defeat the very purpose for which [SECTION] has been enacted. Such application has to be dismissed.
7.10. Here it is worthy to note that Affidavit made u/[SECTION] [ACT] is a complete evidence not requiring any cross-examination. Such affidavit in my considered view has to be equated with a situation wherein after the examination in chief, cross examination is recorded as 'nill'.
7.11. It may be noted that the term "evidence" as defined in [SECTION] of the [ACT] means and includes (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry and
(ii) all documents produced for the inspection of the Court, The former is called "oral evidence" and the later "documentary evidence". The essential characteristics of a statement of a person to be considered evidence "as per the definition of the term is that
(i) it must have been permitted or required to be made before it by a Court legally competent to so permit or require it to be made before it and (ii) such statement must have been made in relation to matters of fact under enquiry i.e., in other words, in the course of judicial proceedings. It therefore, necessarily follows that once the statement of a witness has been permitted or required to be made before it by a Court having jurisdiction to so permit or require the statement to be made in the course of a judicial proceeding pending before it, the statement made shall not lose its character of being "evidence" in such judicial proceedings and may be used for the adjudication of the rights and liabilities of the parties to and determination of the dispute in such judicial proceedings, unless mandated otherwise by the order of the Court or by the words of the statute. 7.12. This view can further be fortified by making a reference to [SECTION], [SECTION] [ACT]:
[SECTION], [ACT] reads as under:
"4. Recording of evidence.-(1) In every case, the examination- in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit."
The term used for affidavit is examination in chief. The cross examination has to follow as a matter of course. Whereas, u/[SECTION], the expression used is 'evidence' and cross examination does not follow as a matter of course.
If the Parliament has used two different phrases for the similar matters in two different enactments, the differential intention must be recognized. 7.13. If by making merely an application, accused can cross examine the witness, the question to be asked is what was the necessity to introduce a different mode? A person giving evidence on affidavit in a civil suit has to be cross examined as a matter of course, what prohibited the Parliament from employing the same course to a person giving evidence on affidavit in a criminal trial that too when a person requires more protection in a criminal trial than in the civil trial?
Answer does not lie in [SECTION] in [SECTION] [ACT], but lies in [SECTION] & [SECTION] Act read with [SECTION] [ACT].
However, I would advert to this aspect a little later.
7.14. The controversy may be discussed from another angle. [SECTION] does not make any mention of the number of applications which an accused can make. Can the accused claim a right to make 'N' number of applications? Will the Court be powerless to reject such claim?
I consider that the Court is not powerless. Accused can not make any such claim. Such applications if made have to be dismissed.
7.15. Above discussion can show that though the Court has to summon the witness if an application is made u/[SECTION], the Court is not powerless to dismiss such applications in certain circumstances.
If the Court has power to dismiss an application made u/[SECTION], a fortiori, the Court has to have the power to decide the genuineness and necessity of such application. 7.16. Above discussion goes to show that in a special trial for the offence punishable under [SECTION] [ACT], accused can not claim a right of cross-examination of the complainant's witness.
Stage of Notice U/[SECTION] [ACT]
8. It has been seriously contended that at the stage of notice, the accused can not be questioned. The basis of this contention seems to be the fallacious thinking that there are no evidence till the stage of [SECTION].
9. It is well settled that there are certain mandatory presumptions of law under the [ACT]. Such presumptions may be summarised in the following manner:
9.1. [SECTION] of [ACT] reads as under:
"118. Presumptions as to negotiable instruments.-
Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;"
Presumptions are:
i. Cheque was drawn for consideration; ii. Cheque was transferred for consideration; iii. Cheque was accepted for consideration.
9.2. [SECTION] of [ACT] reads as under:
"[SECTION]. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in [SECTION] for the discharge, in whole or in part, of any debt, or other liability."
Presumptions are:
i. Holder of the cheque has lawfully received the cheque, meaning thereby that the holder was in lawful possession of the cheque;
ii. The cheque was given in discharge of any debt or liability; iii. Legally enforceable debt or liability was in existence at the time of issuance of the cheque; (contrary view has been overruled by the three judges bench of Hon'ble Supreme Court in [PRECEDENT] decided on 07.05.2010).
iv. The cheque was of the nature as described in [SECTION]; v. The cheque was drawn by the person who was maintaining the account pertaining to the cheque;
vi. Amount of money mentioned in the cheque was intended to be given;
9.3. [SECTION] of [ACT] reads as under:
"146. Bank's slip prima facie evidence of certain facts.- The court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
Presumptions are:
i. The cheque has been dishonoured; ii. The cheque has been so dishonoured for the reason mentioned in the memo.
9.4. [SECTION], [ACT] reads as under:
"27. Meaning of service by post -
Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre- paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Presumptions are:
i. Letter has been served upon the accused; ii. The same is served within the normal reasonable time; iii. The content of the letter was within the knowledge of the
accused. (see a three judges bench decision of Hon'ble Supreme Court if India in [PRECEDENT]).
9.5. Complaints for offence under [SECTION] of [ACT] are based on documentary evidence namely, cheque issued, Bank endorsement of dishonour of cheque, notice given in writing by complainant and record, if any, about service of such notice besides reply, if any, given by the accused and not on any oral statement of complainant. As such, if any of the said documents is not forthcoming, there will not be a prima facie case or material to proceed further and the complaint itself will not be maintainable. In other words, it is only on the basis of documents referred to above filed with complaint, when a prima facie case is made out, process could be issued, otherwise not, ie., process cannot be issued only on the basis of sworn statement of the complainant and his witnesses, if any. 9.6. Obviously, in the special trial for the offence punishable under [SECTION] [ACT], by virtue of [SECTION] and in view of all the mandatory presumptions of law arising in favour of the complainant, the prosecution has to be treated as having discharged its burden of proving the charges against the accused.
In [ACT], by virtue of [SECTION], complainant's evidence being already on record by way of affidavit, first five stages (all the stages are enumerated in the preceding paragraph) can be achieved at one go.
9.7. An accused can easily contend that the affidavit of the complainant has to be read in evidence in the trial and therefore after giving the notice of acquisition, Court has to pass an order stating that the affidavit is now being read in evidence in the trial. And only thereafter, it can be said that the complainant evidence comes to an end.
However, I do not find any force in such contention. It is nowhere necessary to pass a formal order. I am of the view that considering the fact that the offence is based on technical proof, it is not necessary to frame a notice in writing. A oral explanation of the particulars of the offence will suffice the purpose of [SECTION]. Thereafter, accused can make his plea regarding the accusation. If he does not plead guilty, he has to be called upon to admit or deny the documents of the complainant. Evidence being already on record, the accused can then be asked upon to personally explain the incriminating circumstances appearing in the evidence. This personal explanation is the essence of examination under [SECTION] [ACT]. 9.9. [SECTION] [ACT] may be noted here:
"The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."
Clearly, accused while recoding of his plea and examination may make a submission that he will file a written statement with respect to all the incriminating circumstances appearing in evidence (affidavit, documents, mandatory presumptions etc.) against him. The Court may allow his request under [SECTION] [ACT].
It is pertinent to mention here that [SECTION] provides a discretion to the Court to record the examination of the accused in any form.
Further, [SECTION] [ACT] uses the expression "plea of the accused and his examination" meaning thereby that the plea and examination can be recorded at one place though not at one go (for a normal criminal trial). However, for special trial as discussed above, the plea and examination can be recorded even at one go. 9.10. I consider that the above five acts (all the stages are enumerated in the preceding paragraph) can be done at one go. And considering the intent of the Parliament in enacting [SECTION] [ACT], it can be safely said that the above five acts can be recorded in one format at one place and may be briefly mentioned in Summary Trial Register in the column clause-(g) of [SECTION].
9.11. Above discussion clearly shows that in proceeding for offence u/[SECTION] [ACT], accused can be asked to disclose his defence and he can not simply claim trial. Right to be silent
10. Now coming to the contention of the Ld. Counsel for the accused to the effect that every accused has a fundamental right to remain silent. 10.1. [SECTION] [ACT] reads as under:
"106. Burden of proving fact specially within knowledge
- When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him."
10.2. I am not oblivious of several judgments of the Hon'ble superior courts to the effect that in a criminal case the burden of proof is on the prosecution and [SECTION] is certainly not intended to relieve it of that duty. However, situation here is slightly different. 10.3. In [PRECEDENT] it has been held as follows:-
"36. In this context we may profitably utilise the legal principle embodied in [SECTION] of the [ACT] which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference."
10.4. I have already discussed the scope and ambit of affidavit given under [SECTION] [ACT] and several mandatory presumptions of law arising in favour of the complainant by virtue of which a reasonable inference about the guilt of the accused can be drawn.
10.5. Complainant can only state why the cheque in question was given to him. He can not be asked to state several reasons for which the cheque in question could not have been given to him. Such reasons can not be within the knowledge of the complainant. Asking the complainant to specify or establish such reasons would be like asking the prosecution in a murder trial to establish the fact that the whole incident was not covered under the general or special exceptions enumerated in the [ACT]. (Once primary facts are established, [SECTION] [ACT] prohibits such requirements). It is for the accused to raise and establish the existence of circumstances bringing the case within any of the General Exceptions or special exceptions. Similar will be the position under [SECTION] [ACT]. Accused has to explain the circumstances.
11. This issue may be dealt with from another angle. Take one situation in which the accused does not say anything and claim a right to be silent. i.Complainant is not required to say or prove anything other than the dishonour of the cheque which has to be treated as proved by virtue of [SECTION] [ACT]; ii.Other mandatory presumptions of law by virtue of [SECTION], [SECTION] [ACT] and [SECTION] [ACT] are also in favour of the complainant. (as discussed in preceding paragraphs of this order);
iii.Contrary facts have not been established or even not tried by the accused; iv.There is no application under [SECTION] [ACT], therefore accused can not cross examine the complainant;
v.Court has to believe the existence of facts stated by the complainant (as per definition of the 'proved' in [SECTION] [ACT]);
vi.The Court does not know any contrary story of the handing over of the cheque; vii. Accused is not ready to say anything in this respect. 11.1. What are the options left with the Court in such circumstances? 11.2. At this juncture an observation of Hon'ble High Court of Delhi in [PRECEDENT] dt 21.09.2010, may be noted:
"A bare definition of cheque shows that cheque is a Bill of Exchange drawn on specified banker and is an order by drawer on his own agent i.e. bank for payment of certain sum of money to the bearer or the order to person in whose favour cheque is drawn. This order of payment by person to the holder of cheque is not made in casual manner just for the sake of fun. This order is made for consideration and that is why [SECTION] of the [ACT] provides that the holder of a cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability. It was sufficient for complainant to prove the debt and liability by making a statement that the cheques were issued by the respondent for payment of debt."
"The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under [SECTION] of [ACT] or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under [SECTION] of [ACT]. If mere statement under [SECTION] [ACT] or under [SECTION] [ACT] of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under [SECTION] of [ACT], the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/[SECTION] [ACT]. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant."
11.3. The Court has to decided the matter on the basis of available record. 11.4. It may be pertinent to note that once evidence is taken it becomes the evidence for the Court and looses its charecter of complainant's evidence or defence evidence. 11.5. I consider that in such circumstances, the Court should try to make the accused understand the steps of proceedings and the repercussioun of his refusal or denial. If the accused remain seilent even thereafter, the Court has to pronounce the judgment.
12. Above discussion clearly shows that accused can not claim a right of silence so far as the proceedings for offence punishable under [SECTION] [ACT] is concerned. Issue of precedent
13. Now coming to the question in respect of binding nature of the proposition laid down by the Hon'ble High Court of Delhi in [ENTITY]).
14. Ld. Counsel for the accused has vehemently contended that [ENTITY]) has not taken notice of the earlier decision rendered by the Hon'ble High Court of Delhi in [ENTITY]) which laid down a contrary proposition, and since both the decisions have been rendered by Hon'ble Single Bench, the earlier decision has to be followed.
15. Ld. Counsel has not cited any authority supporting his contention. However considering the significance of the issue, I have gone through some authorities holding the field.
15.1. In Vasant Tatoba Hargude and Ors. v. Dikkaya Muttaya Pujari (AIR 1980 Bom.
341), it is held that in case of conflict between earlier and later decisions of Supreme Court, each consisting of equal number of Judges, later decision prevails. However, learned Judges do not record any reasons for taking this line. 15.2. Full Bench of Karnataka High Court, Five Judge Bench in [PRECEDENT], said by majority, speaking through learned Chief Justice [ENTITY], in Paragraph 5 that-
"5. In the light of pronouncements of the Supreme Court in [ENTITY]'s case (supra) and [ENTITY]'s case (supra), we hold that the Full Bench of three Judges in [ENTITY]'s case (supra) did not lay down the law correctly and, we over-rule that decision. The answer to the question referred to this Bench, should in our opinion, be as follows :
'If two decisions of the Supreme Court on a question of law can not be reconciled and one of them is by a Larger Bench while the other is by a Smaller Bench, it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Court'."
15.3. In Full Bench decision of Allahabad High Court in [PRECEDENT], the Court said that-
"20. The difficulty, however, before us is slightly different and is not covered by the authority cited above. We are faced with a situation where there are conflicts between the two decisions of the Supreme Court given by Judges of equal strength. We are not concerned here with reasons which led to these conflicts.
21. [ENTITY] in his book on "Precedent of English Law"
third edition page 133, has dealt with this matter in the following words :
'If there is an increasing tendency to recognise the possibility that previous decisions of the same Court may conflict, it is a tendency which is to be applauded. The Court's attention is frequently not drawn to all the relevant authorities, some cases are not particularly well argued, and unreserved judgments are often delivered. It is useless to deplore these occurrences because they will continue as long as barristers, Judges and litigants remain human '
22. To meet a situation like the present reference may be made to a Full Bench decision of our Court in [PRECEDENT] where the Full Bench held :
'Even if there is some conflict in the two Supreme Court's decisions, we have to follow the law as declared in the latter case of Mysore State Transport Corporation'.
23.To the same effect is the view taken by a Full Bench of Karnataka High Court in [PRECEDENT] and by Calcutta High Court in [PRECEDENT]. Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us.
24. Counsel appearing for the petitioner submitted that since in [ENTITY]'s case ([CASE NUMBER] the earlier decision given in [ENTITY]'s case ([PRECEDENT]) had not been cited, the decision being in ignorance of a case which was binding on the Court is per incuriam. Counsel urged that [ENTITY]'s decision does not have a binding authority. We are unable to agree with the submission of the learned Counsel for the petitioner in [PRECEDENT], the Supreme Court held that a Supreme Court's judgment is binding on High Court and it can not be ignored on ground that relevant provision was not brought to the notice of the Supreme Court. To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court can not be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in [PRECEDENT] [ENTITY], J., agreed with the following observations made in [ENTITY] 'Jurisprudence', page 215 (11th edition) :
'A decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned.'
25.We, therefore, can not ignore the subsequent decision of the Supreme Court on the basis of the same being per incuriam.
26.Counsel appearing for the landlord contended that if there was any objection to the rule of law laid down [PRECEDENT], this Court should examine the merits of the contentions of the parties itself and follow the decision which may appear to be better in point of law. For the above proposition, reliance had been placed on a decision reported in Miles v. Jarvis, (1983) 24 Ch.
D. 633 at page 636, where [ENTITY], J. Observed-
' The question is which of these two decisions I should follow and it seems to me that I ought to follow that of the Master of the Rolls, as being the better in point of law.'
27. To the same effect is the law laid down by [ENTITY] in [PRECEDENT] (?). We do not wish to express opinion on this aspect of the matter. We would only content ourselves by saying that since we are bound by the latter decision of the Supreme Court, we must follow the same. To us, it appears that the latter decision has impliedly overruled the earlier."
15.4. Full Bench of Punjab High Court in [PRECEDENT]. ([PRECEDENT]) expresses however a different view :
"22. A perusal of the judgment in the [PRECEDENT] and [PRECEDENT] cases would plainly indicate that there is a direct conflict on the point therein. Both the judgments have been rendered by a Bench consisting of two Hon'ble Judges and can not possibly be reconciled. This situation at once brings to the fore the somewhat intricate question which is now not of infrequent occurrence, namely 'when there is a direct conflict between two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the High Court and the Courts below'.
23. Now the contention that the latest judgment of a co- ordinate Bench is to be mechanically followed and must have preeminence irrespective of any other consideration does not commend itself to me. When judgments of the Superior Court arc of co-equal Benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the Superior Court and of equal authority are extant than both of them cannot be binding on the Courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant."
15.5. A larger bench of Hon'ble MP High Court has considered all the above authority in [PRECEDENT], and held that:
"In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under [SECTION] of the [ACT] but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in [ENTITY]'s case (supra) which holds that if there is conflict of views between the two co- equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point."
15.6. Above discussion would show that there is a clear divergence of opinion between the Hon'ble superior Courts.
15.7. Hon'ble High Court of Delhi when faced with the same situation (when there is a direct conflict between two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed) has followed the later decision of the Hon'ble Supreme Court. (see [PRECEDENT], dated 15.05.2009).
16. Now, the question before me is which way should I go? 16.1. In my considered opinion, I do not have to go either way since the controversy raised in the instant case can easily be resolved if we scrutinize so called conflict between both the decisions of the Hon'ble High Court of Delhi.
I feel that there is no conflict at all.
16.2. And if there is no conflict between both the decisions, the issue i.e. which of the decisions should be followed will become only academic.
Following discussion will show the obvious.
16.3. [ENTITY] (supra) deals with a situation of normal criminal trial whereas [ENTITY] (supra) deals with a specific criminal trial involving a reverse onus clause based upon several mandatory presumptions of law (as discussed in the preceding paragraphs of this order).
16.4. Hon'ble Justice [ENTITY] in [ENTITY] vs State 123 (2005) DLT 136 (relied upon by the accused) has held that:
"5. Cardinal principles of criminal law is that the accused is presumed to be innocent unless proved guilty. In this legal back ground, the accused when chooses not to plead guilty cannot be asked to open up his case first. It is the prosecution who is to open up the case. This is so stated in [SECTION]. In the case in hand, the Metropolitan Magistrate seems to have burdened the petitioner accused with the onus to prove his innocence by putting so many questions to him by taking the aid of [SECTION].
6. The plain reading of [SECTION] indicates that in case the accused does not plead guilty the Magistrate has simply to ask the accused if he has any defense to make and nothing beyond that. The Magistrate cannot at this initial stage compel the accused to disclose his defense in details particularly when the accused has right to remain silence as guaranteed to him under the [ACT]. If the accused is asked to disclose his defense before the prosecution open up its case it shall be contrary to the basic fiber of the criminal law which presumes innocence of the accused unless proved otherwise."
16.5. There can be no quarrel that the above proposition will apply with full force in a criminal trial where the prosecution is still to lead its evidence. To this extent I am in agreement with the Ld. Counsel for the accused. However, the above highlighted portion is itself an indication that if prosecution case is already established, the accused can be asked to open his defence.
16.6. At this juncture, it will be apt to notice the observation of Hon'ble Justice [ENTITY] in [PRECEDENT] decided on 28.07.2010 wherein he has held that:
"7. The difference between summary trial and summon trial is thus obvious. In summary trial after the accused is summoned, his plea is to be recorded under [SECTION] of [ACT] and his examination if any can be done by MM and a finding can be given by the court under [SECTION] of his examination. The same procedure is to be followed by the MMs for offence of dishonour of cheque. If [SECTION] [ACT] are shown to have been complied with, technically the commission of offence stands completed. It is for the accused to show that no offence could have been deemed to be committed by him for some specific reasons & defences. He cannot simply say "I am innocent" or "I plead not guilty"
(It appears that in paragraph-7 of the judgment [SECTION] is written whereas the section is [SECTION]. This seems to be typographical error. This clarification is only for the convenience of the reader).
16.7. It is further held therein that:
"8. The procedure being followed presently by learned MMs under [SECTION] of [ACT] does not commensurate with the summary trial provisions of [ACT] and provisions of [ACT] and that is the reason that decisions of cases under [SECTION] of [ACT] is taking unnecessary long time and the complaints remain pending for years. The procedure as prescribed under law is that along with complaint under [SECTION] of [ACT], the complainant should file affidavit of his evidence and all necessary documents like dishonour memo, returned cheque, notice of demand and then learned MM should scrutinize the complaint & document & if he finds that the affidavit and the documents disclose dishonour of cheque issued by the accused, issuance of a demand notice by the complainant, nonpayment of the cheque amount by the accused despite notice, cheque return memo of the bank etc. and if the court finds that the complaint was filed within the period of limitation, cognizance is to be taken and notice of appearance of accused should be sent to the accused. In case the accused appears before the court of MM, the Court should ask him as to what was his plea of defence. Normally the first date is wasted by the courts of MM just by taking bail bond of the accused and passing a bail order, while [SECTION] & [SECTION] of [ACT] provide that when the accused appears before MM in a summary trial proceedings, the particulars of the offence, to which he is accused, shall be stated to him & he should be asked whether he pleads guilty or he has any defence to make. This is the mandate of [SECTION] of [ACT], which provides summary trial of offence in terms of [ACT] Under [SECTION] of [ACT], the court has to record the plea of the accused and his examination. It is thus obvious that in a trial of an offence under [SECTION] [ACT] the accused cannot simplicitor say "I plead not guilty" and wants to face trial. Since offence under [SECTION] of [ACT] is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court. If the accused does not appear before the Court of MM on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of MM as the High Court cannot usurp the powers of MM and entertain a plea of accused why he should not be tried under [SECTION]. This plea as to why he should not be tried under [SECTION] is to be raised by the accused before the Court of MM under [SECTION] [SECTION] of [ACT] Along with his plea he can file necessary documents and also make an application, if he is so advised, under [SECTION] of [ACT] to recall the complainant to cross-examine him on his plea of defence. However, only after disclosing his plea of defence he can make an application that the case should not be tried summarily but as a summon trial case. This application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summon trial.
11. The trial under [SECTION] of [ACT] cannot be carried like any other summons trial under [ACT] offences. The documents placed on record of the Court about the dishonour of cheque are the documents from banks and unless the accused says that these documents are forged, or he had not issued the cheque at all, he did not have any account in the bank, the cheque was not signed by him, the cheque book was forged by the complainant or other similar claim, the evidence of the complainant about dishonour of cheque cannot be questioned, nor the complainant can be asked to depose before the court again. If the case u/[SECTION] [ACT], which is document based, is not tried in summary manner, the sole purpose of making this offence summary trial stands defeated. Thus in all cases under [SECTION] of [ACT], once evidence is given by way of affidavit, at the stage of pre-summoning, the same evidence is to be read by the court at post summoning stage and the witness need not be recalled at post summoning stage unless court of MM, for reasons, considers it necessary."
16.8. It is manifestly clear that both the decisions operate in two different fields, cover two different situations. In the first decision, prosecution has to open the case and prove its story whereas in the second decision, prosecution's story has to be treated as proved by virtue of special enactment viz [SECTION] [ACT] which is having a non-obstinate clause. 16.9. I am of the considered opinion that there is no conflict between the two authorities i.e. [ENTITY]) and [ENTITY]). 16.10. Contention of the Ld. Counsel for the accused is rejected.
17. There can be no quarrel that accused has to be examined shortly after the conclusion of the prosecution evidence. In a normal criminal trial for the offences under [ACT], prosecution has to lead its evidence after the framing of charge or notice under [SECTION] [ACT]. At the stage of [SECTION], there can be no evidence on behalf of the prosecution, and therefore the accused can not be examined at this stage. 17.1. However, in a trial under [ACT], the position is slightly different. [SECTION] [ACT] provides that the evidence of the complainant given on affidavit may be read in the trial. Any witness giving evidence on affidavit can not be recalled unless applied by the accused. Accused has no option to apply for recalling of any witness at the stage of notice and therefore at this stage evidence of the complainant has to be treated as concluded.
It is noteworthy that affidavit is placed on record at the time of pre-summoning. It is pertinent to note that the trial involves a reverse onous clause (see a three judge bench decision of Hon'ble Supreme Court in [PRECEDENT] decided on 07.05.2010).
18. In view of the above discussion, I come to the conclusion that all the contentions raised by the Ld. Counsel for the accused deserve a rejection. I accordingly do so.
19. [PRECEDENT] has to be followed in its letter and spirit.
Collateral Issue
20. However, the matter does not end here. This Court is dealing with the complaint cases arising out of the offence punishable under [SECTION] [ACT]. In almost all the cases, accused persons are inclined to prolong the proceedings on the one pretext or the other. Such tricks of the trade are causing difficulties in the smooth following of the precise procedure contemplated by the statute. For one or the other reason, adjournments are sought for by the parties more particularly the accused. Reasons being given are several such as:
i. We do not have a copy of the complaint or affidavit or necessary documents; ii. Today, We are furnishing bail bond and a short date may be given for the notice;
iii. Give a short date and we will argue on the point of notice;
iv. Matter is fixed for complainant's evidence; v. I have a right of cross-examination; vi. Settlement talks are going on; vii. Counsel is not available; viii. Exemption application on behalf of the accused; ix. Accused is ready to pay the cheque amount in instalments;
21. The problem needs an eleborate discussion. Intention of the legislature in enacting summary trial prosedure for cheque dishonour offences has to be given full effect.
22. [SECTION] [ACT] reads as under:
"143. Power of court to try cases summarily.-
(1) Notwithstanding anything contained in the [ACT], all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of [SECTION] (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."
22.1. The word "Summary" is not defined either in the [ACT] or in the [ACT].
The meaning of the word "Summary" has been stated in Black's Law Dictionary With Pronunciation, Fifth Edition, on Page 1287, as under :
"Summary, n. An Abridgment; brief; compendium; digest; also a short application to a court or judge, without the formality of a full proceeding.
Summary, adj. Short, concise; immediate; peremptory; off-hand, without a jury, provisional; statutory. The term as used in connection with legal proceedings means a short, concise, and immediate proceeding."
A summary proceeding is a proceeding by which a cause or controversy is settled. In a summary proceeding, trial is conducted and case is disposed of in a prompt and simple manner, out of the regular course. In the sphere off procedure, proceedings can be said to be summary when they are short and simple in comparison with regular proceedings.
The term "summary", when used in connection with legal proceedings, means a short, concise and immediate proceeding without observance of the formalities of a full proceeding. Summary trial is one of the well-known and generally adopted procedure to achieve the objective and purpose of "speedy trial"
22.2. In summons cases the legislature intended to effect further saving of the Court's time by permitting that a formal charge need not be framed and it would meet the ends of justice if accusations made against an accused are read over and explained to him in the matter of recording of evidence of witnesses. The Legislature permitted the Magistrate to prepare a memorandum containing the substance of evidence given by the witnesses. In summary trials the same procedure is to be adopted by the Magistrate as is prescribed for summons cases but to effect further economy of time and energy the Legislature dispensed with elaborated recording of the statement of the accused persons by providing in [SECTION], [ACT] that the provisions of [SECTION], [ACT] would not apply to summary trials and deliberately avoided any mention of summary trials in [SECTION] of the [ACT] which suggests that no separate record of evidence produced during the summary trial is required to be prepared by the Court conducting summary trial. [SECTION], [ACT] points out as to what kind of record is to be prepared in a summary trial and there is no mention of evidence given by the witness in [SECTION], [ACT] In [SECTION], [ACT] which deals with the judgment to be delivered in a summary trial it is provided that the Magistrate shall record the substance of the evidence and a judgment containing a brief statements of the reasons for the findings.
22.3. It would, thus, appear that while prescribing 4 kinds of trials, the Legislature has taken care to ensure that the right of the accused person to defend himself against the charge or accusation made against him is protected but having regard the quantum of sentence which may be imposed on an accused person in case he is found guilty, the Legislature has tried to effect economy in time and energy by providing that in warrant trials the evidence may be recorded in narrative and in summons trial the framing of formal charge may be substituted by reading over and explaining the accusation and, recording of substance of evidence in place of recording the evidence in question-answer form or in the narrative and in summary trials further economy has been effected as pointed out above. 22.4. The purpose of providing summons or summary procedure is to shorten the record and the work of the Magistrate and save his time. Undoubtedly when the Legislature directed that 'these cases shall be tried in a summary way', the direction is meant to be followed in letter and spirit.
23. Considering the intention of the legislature and dictum of Hon'ble High Court, this Court deems it appropriate to lay down the procedure to be followed. The procedure indicated hereinafter is for the convenience for the parties. Procedure to be followed by this Court can be described as under:
On the first day of appearance of the accused i. His plea and examination shall be recorded under [SECTION], [SECTION], [SECTION] [ACT];
ii. He has to disclose his defence in his plea and examination; iii. He has to be ready with his entire defence evidence on the first appearance; iv. He can also file an application under [SECTION] if found any necessity thereof in which case he can cross-examine the complainant however to a limited extent;
v. After the cross-examination of the complainant (if any), defence witnesses in presence shall be examined restricted to the defence taken by the accused; vi. Accused can also make a request under [SECTION] [ACT] if he wants to examine himself as a defence witness;
vii. Thereafter, the matter shall be listed for judgment. In the mean time, parties may file written arguments if any;
viii. If accused chooses not to appear in person or for any other reason he does not appear and sent his counsel for appearance, the Ld. Counsel has to take notice and make the plea as indicated above in which case examination of the accused shall be dispensed with as provided in the proviso appended to [SECTION] [ACT]. (see [PRECEDENT] and [PRECEDENT]);
ix. It shall not be any excuse that the accused is unable to appear before the Court for some reason. In the absence of the accused, the matter has to be proceeded with the help of the Ld. Counsel for the accused as provided under [SECTION], [SECTION] and [SECTION] [ACT];
x. It shall not be sufficient for the accused to sent a proxy counsel and get an adjournment. Provisions of [SECTION], [SECTION] and [SECTION] [ACT] clearly require that accused can be exempted only when he is represented by his counsel. The representation has to be fruitful. A counsel of accused or for that matter a proxy counsel, if does not assist the Court in the progress of the trial can not be said to represent the accused. Exemption and adjournment are two different terms deserving two different interpretation;
xi. That is to say, whatever the situation may be, on the first appearance, the accused has to participate by disclosing his defence and leading his entire defence evidence.
xii. It is pertinent to note that the trial involves a reverse onous clause (see a three judge bench decision of Hon'ble Supreme Court in [PRECEDENT] decided on 07.05.2010), and further that the offence has to be tried in a summary way and also that material already on record is sufficient for the judgment in the absence of any defence being disclosed by the accused ( see decision of Hon'ble High Court of Delhi in [PRECEDENT] decided on 02.08.2010) and also that there is a clear mandate in [SECTION] [ACT] for expeditious trial.
xiii. It may therefore be made clear to the parties that accused will not be granted any adjournment for the purposes of his defence evidence. In exceptional circumstances, one more opportunity may be granted to the accused, however the same shall be subject to certain "TERMS" as the Court may think fit (see [SECTION] [ACT]).
24. However, taking a more realistic view of the traditional practice going on and considering the fact that most of the parties are not conversant (say knowingly or may be unintentionally) with the special procedure to be followed in the trial of the offence under [SECTION] [ACT], this Court is of the opinion that alternate procedure may be followed for some duration.
24.1. This alternate procedure in substance is the same as the main procedure, however with a slight modification for convenience of the general public.
On the first day of appearance of the accused (Alternate procedure) i. His plea and examination shall be recorded under [SECTION], [SECTION], [SECTION] [ACT];
ii. He may make statement in his plea that he will file a written statement in respect of his examination under [SECTION] [ACT]. (By virtue of [SECTION] [ACT], this request may be allowed);
iii. He may also state therein that he will also file an application under [SECTION] [ACT] for the purpose of cross examination of the complainant; iv. Accused may also file list of defence witnesses;
v. Accused can also make a request under [SECTION] [ACT] if he wants to examine himself as a defence witness;
vi. After recording of his plea wherein he has made such statement, the accused may be allowed to do all such things within a reasonable period, say of 15 days; vii. On the first day itself, the matter shall be directed to be listed for the next date of hearing for cross examination and defence evidence if any; viii. The order may also clarify the position that if the accused complied with all the necessary requirements indicated above, complainant and all the defence witnesses shall directly be summoned by the office for the next date of hearing, however, the relevance and necessity of witnesses shall be in the discretion of the Court.
ix. The order may also clarify that if accused fails to comply with all or any of the above requirements within the stipulated time, no further opportunity will be granted except in very exceptional circumstance;
x. Other steps and directions enumerated in the main procedure shall remain unchanged.
25. This Court is of the considered view that after appearance of the accused (or his counsel), the matter has to be disposed off latest by two dates of hearing. Public Exchequer should not be burdened with the cost of a private litigation.
26. With these observations, the matter stands concluded.
27. A copy of this order be placed on the official website of district court.
([ENTITY]) [ACT] 24.12.2010