Ram-Gopal Automobiles At ... vs The State Of Maharashtra
2017 Latest Caselaw 8381 Bom

                                        (1)                            cri.wp 1112.17

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


              CRIMINAL WRIT PETITION NO. 1112 OF 2017


      Ram Gopal Automobiles,
      At Aurangabad Road, Kannad
      Proprietor Shri Subhash
      Ramgopal Bharuka,
      Age: 65 years, Occ: Business & Agri.,
      R/o Main Road, Samarth Nagar,
      Kannad, Tq. Kannad,
      Dist. Aurangabad.                                    ...      Petitioner

                       Versus

1.    The State of Maharashtra
      Through Police Station, Kannad,
      Dist. Aurangabad.                                    ...      Respondent


                                     -----
Mr. A.V. Patil, h/f. Avinash Suryawanshi, Advocate for the Petitioner.
Mr. A.R. Borulkar, A.P.P. for the Respondent/State.
                                     -----

                                    CORAM :   S.S. SHINDE &
                                              MANGESH S. PATIL, JJ.

DATE OF RESERVING THE JUDGMENT : 06.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 03.11.2017 ...

JUDGMENT: (Per Mangesh S. Patil, J.)

. Rule. Rule is made returnable forthwith. With the consent of

both the sides the matter is heard finally.

                                              (2)                               cri.wp 1112.17



2.             This     petition    filed   under    article   226     and     227      of   the

Constitution of India brings out yet another instance of delay in disposal

of matters which the statute as well as directions of the Supreme Court

require to be disposed of in six months.

3. The petitioner is the original complainant in S.C.C. Nos. 1147

of 2008 and 1148 of 2008 pending on the file of learned J.M.F.C.,

Kannad, District, Aurangabad for the offences punishable under Section

138 of the Negotiable Instruments Act, 1881. According to the

petitioner, the cases are awaiting disposal since last more than nine years

and inspite of attempts made by him successive Magistrates have not

been able to dispose of the cases. Hence, the writ petition seeking

direction to the learned J.M.F.C. to decide the matters within a period of

four months.

4. We have heard the learned Advocate for the petitioner and

the learned A.P.P. We have perused the copies of the record and

proceedings filed along with the petition.

5. According to the learned Advocate for the petitioner in blatant

violation of the mandate of law as contained in Section 145 of the

Negotiable Instruments Act and the directions in the case of KSL &

(3) cri.wp 1112.17

Industries Ltd. V/s. Mannalal Khandelwal & Anr; 2005 (2) All MLR

581, and Indian Bank Association and Ors. V/s. Union of India

and Anr; AIR 2014 SC 2528, the successive Magistrates have not been

able to dispose of these matters in time. According to the learned

Advocate, inordinate delay in disposal of the cases in violation of such

directions cannot be digested. When the law requires such matters to be

decided expeditiously bringing a civil liability under a criminal law, the

purpose of such mandate of law would be defeated if the matters are not

decided expeditiously.

6. The learned A.P.P. fairly conceded that the matters under

Section 138 of the Negotiable Instruments Act need to be decided

expeditiously.

7. A perusal of the extract of the C.I.S. (Case Information

System) statement of the Civil and Criminal Court, Kannad in respect of

these two cases reveals that the cases were filed on 03.10.2008 and took

almost ten months to cause appearance of the accused. Then further

period of nine months was lost in recording the plea. Since 08.07.2010,

the matters were awaiting hearing till 16.11.2013. It is only on

29.03.2014 that the recording of deposition actually began and since

then the matters are part heard. It is apparent from the copies of the

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applications filed along with the petition that at times the accused filed

applications for variety of reasons for closing the cases and some time

must have been lost in obtaining the say of the petitioner on these

applications and deciding them by extending opportunity of being heard.

However, we must mention that a bare look of the aforementioned facts

depicts a sorry state of affairs.

8. The whole purpose of making a civil liability an offence the

intention of the legislature was to enhance confidence in the business

community about the transactions entered into with Negotiable

Instruments. The paramount consideration therefore of every Criminal

Court conducting a case under Section 138 of the Negotiable Instruments

Act is to see to it that the intention of the legislature as demonstrated

from time to time by virtue of various amendments incorporated in

Chapter XVII of the Negotiable Instruments Act was to see that such

cases are disposed of as expeditiously as possible.

9. Even recently the Supreme Court in Criminal Appeal No. 1731

of 2017 arising out of Special Leave Petition (Criminal) No. 5451 of 2017,

M/s. Meters and Instruments Private Limited and Anr. V/s.

Kanchan Mehta decided on 05.10.2017 by referring to the catena of

decisions rendered by the Supreme Court and Bombay High Court has

(5) cri.wp 1112.17

made following observations:

" ...Subject to this, the trial can be on day to day basis and

endeavour must be to conclude it within six months. The guilty must

be punished at the earliest as per law and the one who obeys the law

need not be held up in proceedings for long unnecessarily."

9. The reading of this judgment clearly shows the anxiety

expressed by the Supreme Court having seen that almost 20% of the

cases pending in the Criminal Courts in India relate to the offences

punishable under Section 138 of the Negotiable Instruments Act. It is in

view of such gravity of the matter, it is utmost necessary for a Criminal

Court to bear in mind such judicial pronouncements and make endeavour

to dispose of the cases punishable under Section 138 of the Negotiable

Instruments Act with desired promptitude.

10. It is pertinent to mention hear that during pendency of this

matter, we have called statistics from the Registry about pendency of

cases under Section 138 of the Negotiable Instruments Act in various

districts falling under the jurisdiction of this Bench and the statistics

reads as under:

                                             (6)                           cri.wp 1112.17


                 Sr. No.           DISTRICT           TOTAL PENDENCY
                                                        IN NUMBERS
                     1        AURANGABAD                        15400
                     2        AHMEDNAGAR                        16213

                     4             PARBHANI                      4145
                     5         OSMANABAD                         4414
                     6              JALNA                        4820
                     7              DHULE                        3099
                     8             NANDED                        3419
                     9              BEED                         5820
                    10              LATUR                        5309
                    11             JALGAON                       8706
                                   TOTAL                        72096

The above figures indeed demonstrate how severe the problem

regarding pendency of these cases is. Realising such huge pendency

every where the Supreme Court in the case of M/s. Meters and

Instruments Private Limited and Anr. (supra) has issued following

directions:

"17. Having regard to magnitude of challenge posed by cases filed under Section 138 of the Act, which constitute about 20% of the total number of cases filed in the Courts (as per 213 Report of the Law Commission) and earlier directions of this Court in this regard, it appears to be necessary that the

(7) cri.wp 1112.17

situation is reviewed by the High Courts and updated directions are issued. Interactions, action plans and monitoring are continuing steps mandated by Articles 39A and 21 of the Constitution to achieve the goal of access to justice. Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category. Atleast some number of Section 138 cases can be decided online. If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused. Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be used. Personal appearance can be dispensed with on suitable self operating conditions. This is a matter to be considered by the High Courts and wherever viable, appropriate directions can be issued.

21. It will be open to the High Courts to consider and lay down category of cases where proceedings or part thereof can be conducted online by designated courts or otherwise. The High Courts may also consider issuing any further updated

(8) cri.wp 1112.17

directions for dealing with Section 138 cases in the light of judgments of this Court."

11. In view of the fact that cognizance of such alarming situation

is taken by the Supreme Court, we need not delve much and deem it fit

to request the Registrar General to place the matter before Hon'ble the

Chief Justice for issuing appropriate administrative directions in the light

of the directions of the Supreme Court.

12. Turning back to the matter in hand, the learned J.M.F.C. who

is presently posted at Kannad has submitted a status report dated

22.09.2017 in respect of these two cases. He has inter alia pointed out

that till the matters were assigned to him in the year 2015 there was no

substantial progress and he has endeavoured to persuade the parties to

conduct the hearing from time to time. He has also pointed out as to

how the successive applications on behalf of the accused have caused

delay since he was required to decide those applications albeit he has

rejected them. It is obvious that the very fact that the matters have

prolonged for nine years suggests that there could be several reasons

and all the stake holders must have had some role or the other in

causing the delay. We don't think it necessary to enter into such inquiry

(9) cri.wp 1112.17

and it would be appropriate in the fitness of things to simply direct the

learned J.M.F.C., Kannad at least henceforth to conduct the hearing of

these cases on day to day basis and endeavour to dispose them finally

within two months from the receipt of the writ. The Registry shall ensure

that the writ reaches the concerned Court on or before 15.11.2017. We

also express our dissatisfaction as to the manner in which the parties

have not been co-operating the learned Magistrate for expeditious

disposal and we hope and trust that at least hereafter they would extend

utmost co-operation to the learned Magistrate.

13. In the result, the petition succeeds in terms of the above

terms. The rule is made absolute accordingly.

      [MANGESH S. PATIL, J.]                       [S.S. SHINDE, J.]




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