To do or not to do: Discharge in cheque bounce case under Negotiable Instruments Act [Read the Order]

Delhi High Court has appointed amicus for deciding the controversy as to whether the trial court can discharge an accused in summons case line cheque bounce under Negotiable Instruments Act.

A bench of Justice Manmohan and Justice Sehgal has passed the order in the case titled as COURT ON ITS OWN MOTION vs STATE on 11.10.2019.

The present case was registered suo moto on the basis of a reference received from a court in Delhi under Section 395 CrPC. The issues raised are as under:

Q.1 Does the Court of a Magistrate have the power to discharge the accused upon his appearance in Court in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular, once cognizance has been taken and process issued under Section 204 Cr.P.C.?

Q.2 If the answer to Question 1 is in the affirmative, under which Section of Cr.P.C. does such a power lie?

Q.3 Further, if the answer to Question 1 is in the affirmative, at what stage can such an application for discharge be entertained i.e. before the framing of notice of accusation under Section 251 Cr.P.C., or before/at the time of framing of notice of accusation under Section 251 Cr.P.C. or before/at the time/even after the framing of notice of accusation under Section 251 Cr.P.C.?

Q.4 Finally, if the answer to Question 1 is in the affirmative, what shall be the scope of such a power of discharge and what will be the scale of standard of proof on which the accused will be required to make his contention acceptable – similar/stricter/lesser vis-a-vis what is so contemplated under Sections 227/239/245 Cr.P.C.? Moreover, can documents produced by the accused be allowed to be taken into consideration at that stage for deciding such an application?

Q.5 On the other hand, if the answer to Question 1 is in the negative, will it be correct to say that the accused shall not have any remedy vis-a-vis the magisterial court which will only conduct a proper trial once process has been issued and accused has been summoned?

High Court ordered "Mr.N.Hariharan, learned senior counsel, Mobile No.9891097218 is appointed as the Amicus Curiae to assist this Court. Registry is directed to supply a copy of the entire paper book to the learned Amicus Curiae".

Read the Order here:

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