Law Commission Of India Report No. 213
Fast Track Magisterial Courts for Dishonoured Cheque Cases
Forwarded to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by Dr. Justice AR. Lakshmanan Chairman, Law Commission of India, on November 24, 2008.
Dr. Justice AR. Lakshmanan
New Delhi-110 001
November 24, 2008D.O. No. 6(3)145/2008-LC(LS) Dear Dr. Bhardwaj ji,
Fast Track Magisterial Courts for Dishonoured Cheque Cases
1. Introduction1.1 The law relating to negotiable instruments is not the law of one country or of one nation; it is the law of the commercial world in general, for, it consists of "certain principles of equity and usages of trade which general convenience and common sense of justice had established to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world". Even now the laws of several countries in Europe are, at least so far as general principles are concerned, similar in many respects. Of course, on questions of detail, different countries have solved the various problems in different ways, but the essentials are the same, and this similarity of law is a pre-requisite for the vast international transactions that are carried on among the different countries.1 1.2 A cheque is an acknowledged bill of exchange that is readily accepted in lieu of payment of money and it is negotiable. However, by the fall in moral standards, even these negotiable instruments like cheques issued, started losing their creditability by not being honoured on presentment. It was found that an action in the civil court for collection of the proceeds of a negotiable instrument like a cheque tarried, thus defeating the very purpose of recognizing a negotiable instrument as a speedy vehicle of commerce. It was in that context that Chapter XVII was inserted in the Negotiable Instruments Act.1 1.3 Over the years there have been many important changes in the way cheques are issued/bounced/dealt with. Commercial globalization has resulted in giving big boost to our country. With the rapid increase in commerce and trade use of cheque also increased and so the cheque bouncing disputes. 1.4 Inclusion of additional forms of crime, for example, section 138 cases under the Negotiable Instruments Act or section 498A cases under the Indian Penal Code, contributed a large number of cases in the criminal courts. To deal with these types of cases we do not have additional number of courts, we do not have additional infrastructure. In many States sufficient budgetary provisions are not made for improving the infrastructure of the subordinate courts, including additional improvement of existing courts, court complexes.2 1.5 Over 38 lac cheque bouncing cases are pending in various courts in the country.3 There are 7,66,974 cases pending in criminal courts in Delhi at the Magisterial level as on 1st June, 2008. Out of this huge workload, a substantial portion is of cases under section 138 of the Negotiable Instruments Act which alone count for 5,14,433 cases (cheque bouncing).4 According to Gujarat High Court sources, there are approximately two lac cheque bouncing cases all over the State, with the majority of them (84,000 cases) in Ahmedabad, followed by Surat, Vadodara and Rajkot.5 73,000 cases were filed under section 138 of the Negotiable Instruments Act (cheque bouncing) on a single day by a private telecom company before a Bangalore court, informed the Chief Justice of India, K. G. Balakrishnan, urging the Government to appoint more judges to deal with 1.8 crore pending cases in the country.6 The number of complaints which are pending in Bombay Courts seriously cast shadow on the credibility of our trade, commerce and business. Immediate steps have to be taken by all concerned to ensure restoration of the credibility of trade, commerce and business.7 1.6 Very recently, while allowing the appeal of an accused in a cheque bouncing case, the Supreme Court has ruled that speedy trial is a fundamental right of an accused.8 1.7 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. 2. (a) Section 138 Of The Negotiable Instruments Act, 1881 2.1 In India, there is reason to believe that instruments of exchange were in use from early times and we find that papers representing money were introduced into the country by one of the Muhammadan sovereigns of Delhi in the early part o the fourteenth century, the idea having been borrowed from China; a complete system of paper-currency and banking had been developed as early as the tenth century and it is not importable that such an idea filtered into India sometime latter9 2.2 Before the passing of the Act, the law of negotiable instruments as prevalent in England was applied by the courts in India when any question relating to such instruments arose between Europeans.9 2.3 Though the Negotiable Instruments Act had been passed into law in 1881, Chapter XVII comprising sections 138 to 142 was inserted by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). 2.4 The value of a cheque, which was reduced to merely a piece of paper, particularly amongst the business community, has been greatly enhanced since the introduction of this new Chapter XVII relating to penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts. The implementation of these provisions for nearly 14 years revealed certain shortcomings which have been endeavoured to be plugged by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 (55 of 2002). The Act 55 of 2002 has, besides other amendments, amended sections 138, 141 and 142 and inserted new sections 143 to 147 in the Act (section 143 - summary trial; section 144 - service of summons; section 145 - evidence on affidavit; section 146 - Bank’s slip prima facie evidence; section 147 - offences to be compoundable). 1. Bhashyam & Adiga’s The Negotiable Instruments Act, rev. Justice Ranganath Misra, Bharat Law House, New Delhi, 18th edn. (2008), p.1. 2. Presidential address by Hon’ble Mr. Justice K. G. Balakrishnan, CJI , at National Seminar on Delay in Administration of Criminal Justice System, 17.03.2007, Vigyan Bhavan, New Delhi [http://supremecourtofindia.nic.in speeches-2007]. 3. The Hindustan Times, New Delhi, 14-10-2008. 4. Speech delivered by Hon'ble Mr. Justice Ajit Prakash Shah, Chief Justice, Delhi High Court, at the inaugural of Dwarka Courts Complex, on the September, 2008. 5. http://www.indianexpress.com, visited 26-09-2008. 6. http://www.deccanherald.com and http://www.aol.in,visited 29-29-2008. 7. KSL & Industries Ltd. v. Mannalal Khadelwal, 2005 Cr LJ 1201 (Bom), 1204. 8. S. Rama Krishna v. S. Rami Reddy AIR 2008 SC 2066. 9. Bhashyam & Adiga's The Negotiable Instruments Act, rev. Justice Ranganath Misra, Bharat Law House, New Delhi, 18th Edn. (2008), p. 5. 2.5 Section 138 reads as under:
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.’
(i) Cheque should have been issued for the discharge, in whole or part, of any debt or other liability;
(ii) The cheque should have been presented within the period of six months or within the period of its validity, whichever is earlier; Note: The cheque may be presented any number of times for collection within its validity.
(iii) The payee or the holder in due course should have issued a notice in writing to the drawer within thirty (fifteen prior to 2002 amendments) days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(iv) After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice;
Note: Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found (see section 98(d) of the Act).
(v) On non-payment of the amount due to the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days, before a Metropolitan Magistrate or a Judicial Magistrate of the first class. The cognizance of a complaint may be taken by the Court after the prescribed period, if the complaint satisfies the Court that he had sufficient cause for not making a complaint within such period.
(vi) The offence under this Act is compoundable (see section 147 of the Act, inserted in 2002).12.7 Under law, when a person has tendered the amount payable by him he must be deemed to have discharged his obligation and the creditor is bound to accept the tender. Where on dishonour of cheque issued by the accused, he disclaimed the liability to pay the cheque but on receiving notice tendered payment of the whole amount twice in front of the court but the complainant refused to accept it both the times, the accused could not be said to be guilty of non-payment of the amount.1 2.8 The Supreme Court again spelt out necessary ingredients of section 8 in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., AIR 2000 SC 954, reiterated by the Apex Court in K. R. Indira v. Dr. G. Adinarayana, AIR 2003 SC 4689. What follows therefrom is that the last ingredient to complete an offence under section 138 of the Act is failure of the accused to make payment within 15 days after service of notice. If payment is made within the said period, no offence is committed, but in case of failure, the offence gets completed. Even if the payment is made on the 16th day the same is not sufficient to come out of the rigours of section 138 of the Act. In criminal law, commission of offence is one thing and prosecution is quite another. Commission of offence is governed by section 138 of the Act. Prosecution is governed by section 142 of the Act.2 1. Bhashyam & Adiga's The Negotiable Instruments Act, rev. Justice Ranganath Misra, Bharat Law House, New Delhi, 18th Edn. (2008), p. 743. 2. Bhashyam & Adiga's The Negotiable Instruments Act, rev. Justice Ranganath Misra, Bharat Law House, New Delhi, 18th Edn. (2008), p. 744. (b)Allied Provisions (i) Mode Of Trial: Summary Procedure 2.9 Provisions of section 143, as inserted in the Act in 2002, state that offences under section 138 of the Act shall be tried in a summary manner. Though it begins with a non obstante clause carving out an exception to the provisions of the Criminal Procedure Code, sub-section (1) thereof clearly provides that the provisions of sections 262 and 265 of the Code, as far as may be, apply to such trials. It empowers the Magistrate to pass a sentence of imprisonment for a term up to one year and an amount of fine exceeding five thousand rupees. It also provides that if 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, he can do so after hearing the parties and recalling any witness who may have been examined. Under this provision, so far as practicable, the Magistrate is expected to conduct the trial on a day-to-day basis until its conclusion and conclude the trial within six months from the date of filing of the complaint. 2.10 Chapter XXI of the Criminal Procedure Code, consisting of sections 260 to 265, deals with the procedure to be followed when a case is being tried summarily. In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. (ii) COMPOUNDING OF OFFENCE 2.11 By inserting section 147 in the Act in 2002, offence punishable under section 138 of the Act has been made compoundable and it does not provide for any other or further qualification or embargo like sub-section (2) of section 320 of the Criminal Procedure Code. The parties can compound the offence as if the offence is otherwise compoundable. Thus, the offence is made straightway compoundable like the case described under sub-section (1) of section 320. No formal permission to compound the offence is required to be sought for.1 2.12 Even prior to section 147, the opinions expressed by different High Courts and also the Apex Court appear to be in favour of approving such Compounding and settlement between the parties, taking into consideration the aim and object of the provisions of the Act. If the matter in relation to which the cheque had been issued has been settled between the parties, such settlement be given effect to keeping in mind the object of introducing the relevant provisions of the Act; the court can note the same and record the settlement between the parties.2 1. Rameshabhia Somabhai Patel v. Dineshbhai Achalanand Rathi, 2005 Cr LJ 431 (Guj). 2. Employees' State Insurance Corporation v. A.P. Heavy Machinery and Engg. Ltd., 2005 Cr LJ 1080 (AP). (c) Object Of Section 138 2.13 The object of bringing section 138 on the statute is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It is to enhance the acceptability of cheque in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. If the cheque is dishonoured for insufficiency of funds in the drawer’s account or if it exceeds the amount arranged to be paid from that account, the drawer is to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. 2.14 In KSL & Industries Ltd. V. Mannalal Khandelwal, 2005 Cr LJ 1201 (Bom). the Bombay High Court observed:
"Section 138, in fact, has been introduced to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in the account maintained by him in bank and induce the payee or holder-in-due-course to act upon it. In other words, these provisions have been introduced to give greater credibility to our trade, business, commerce and industry, which is absolutely imperative in view of the growing international trade and business. The constitutional validity of these provisions has been upheld by the Supreme Court."2.15 The Statement of Objects and Reasons appended to the Bill which became the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, inter alia, states:
"These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII 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 for 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.... A large number of cases are reported to be pending under sections 138 to 142 of the Negotiable Instruments Act in various courts in the country... The proposed amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as exempting an official nominee director from prosecution under the Negotiable Instruments Act, 1881."2.16 The Bombay High Court in KSL & Indutries Ltd., 2005 Cr LJ 1201 (Bom). deemed it appropriate, in order to accomplish the underlying object of the Act, to pass the following directions:
(a) 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.
(b) 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….
(c) 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...12.17 In Goa Plast (P) Ltd. v. Chico Ursula D’Souza, JT 2003 (9) SC 451, the Supreme Court, while considering the object and the ingredients of sections 138 and 139 of the Act, observed as under:
"The object and the ingredients under the provisions, in particular, sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."2
1. 2005 Cr LJ 1201 (Bom) at 1208.
2. JT 2003 (9) SC 463.(d) Problem Of Delay In Disposal Of Cases 2.18 Over 38 lac cheque bouncing cases are pending in various courts in the country. There are 5,14,433 cases under section 138 of the Negotiable Instruments Act, 1881 (cheque bouncing disputes) pending in criminal courts in Delhi at the Magisterial level as on 1st June, 2008. Similarly, in Gujarat 84,000 and in Mumbai 1,51,759 cases are pending. As reported in a newspaper, 73,000 cases were filed under section 138 of the Negotiable Instruments Act before a court in Bangalore. Such large number of cases would take long time for their disposal under the present set-up of the courts. These disputes are not merely criminal trials but they involve the interests of commercial circles/economy of the globe. 2.19 In the age of international trade and globalization, it is even more important that people must have implicit faith in the credibility and honesty of the system. Unfortunately, sanctity and credibility of cheques in commercial transactions have been eroded to a large extent.1 1. 2005 Cr LJ 1201 (Bom). 2.20 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. 2.21 Mr. Justice R. C. Lahoti, ex-CJI, (on the ‘Law Day’ November 26, 2004) on the matter of pendency of cases quoted the following from the speech of late Dr. L. M. Singhvi, Senior Advocate and the then President, Supreme Court Bar Association:
"Increasing institution of cases, mounting arrears, accumulating congestion in courts and inevitable law’s delays have given rise not to a body of scientific and rational blueprints in terms of institutional organization and procedural methods or in terms of assessments of judicial manpower requirements, but to a spate of alarm signals and dire shibboleths. If there are more and more cases in courts, that is because we have a population explosion, we have a more complex and friction-prone society, our dispute resolution and conciliation system are bereft of efficacy, we have increasingly greater awareness of rights, and perhaps because we have more injustice and more arbitrariness in our midst. The Governments are under an obligation to provide an adequate machinery for justice, to appoint more judges and to give them better emoluments and facilities, to build more courthouses, to enact better laws, to devise better dispute resolution procedures, and to administer more effectively and equitably, rather than to blame lawyers and judges for the increase and proliferation of litigation. Courts in India cannot apply a mechanical-statistical razorblade or wave a magic wand to wipe out the enormous pendency of arrears. Nor can the courts afford to turn a blind eye or a deaf ear to the rank injustices and incongruities of administration merely because they have already too much on their hands. If the courts begin to do that systematically, they might endanger the confidence and credibility they have come to enjoy."1
1. 2004 (10) SCALE J-22 -J-27.3. Easy Access To Justice 3.1 Hon’ble Dr. Justice AR. Lakshmanan, Chairman of the Law Commission of India, has very beautifully explained the subject in his book ‘Voice of Justice’. Some of the relevant paragraphs are reproduced as under:
"The Constitution of India guarantees to all its citizens right to life and personal liberty, right to equality, right to freedom etc. Apart from these public rights, there are various private rights arising from torts and contracts and also the various social welfare legislations such as Contract Labour (Regulation and Abolition) Act, 1976, Equal Remuneration Act, Minimum Wages Act and so on. But these rights are of no avail if an individual has no means to get them enforced. Rule of law envisages that all men are equal before law. All have equal rights but unfortunately all cannot enjoy the rights equally. The enforcement of the rights has to be through the courts, but judicial procedure is very complex, costly and dilatory putting the poor persons at a distance.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 criminal justice system in the country is designed to protect the ad hoc citizens of this country from the onslaught of criminal activities of a ad hoc section of the community which indulges in such acts. The outcome ad hoc of any criminal justice system must be to inspire confidence and ad hoc create an attitude of respect for the rule of law. An efficient criminal ad hoc justice system is one of the cornerstones of good governance. When ad hoc we think of criminal justice system it consists of the police, ad hoc prosecuting agency, various courts, the jail and the host of other ad hoc institutions connected with the system. The State as a guardian of ad hoc fundamental rights of its citizens is duty-bound to ensure speedy trial ad hoc 26 Dr. Justice AR. Lakshmanan, Voice of Justice, Universal Law Publishing Co. Pvt. Ltd., ad hoc Delhi, (2006), pages 231-233, 236, 239, 245-247, 250. ad hoc and avoid excessively long delays in trial of criminal cases that could ad hoc result in grave miscarriage of justice. It is in the interest of all ad hoc concerned that the guilt or innocence of the accused is determined as ad hoc quickly as possible. But, unfortunately, there are a large number of ad hoc cases pending in various courts…. Various factors contribute to large ad hoc pendency of criminal cases in the subordinate courts. Speedy trial of ad hoc criminal cases should be recognized as an urgent need of the present ad hoc judicial system in order to decide the fate of lakhs of litigants. It will ad hoc help enhance the faith of general public in the present judicial system. ad hoc In order to have a strong socio-economic system, it is important that ad hoc each and every state of trial of an accused should move at reasonably ad hoc fast pace…. Speedy trial ensures that a society is free of such ad hoc vices…. The new system of plea bargaining incorporated in the ad hoc Criminal Procedure Code shall be available to the under-trial ad hoc prisoners and the court and the prosecuting agency and the lawyers ad hoc should make them aware of the benefits of the benevolent provision ad hoc incorporated in our statute.
The challenges before the criminal justice system are to balance the ad hoc rights of the accused while dispensing speedy and effective justice. ad hoc The criminal justice system machinery must also meet the challenge ad hoc of effectively dealing with the emerging forms of crime and behaviour ad hoc of the criminals.
On many occasions, delay in the process of trial is caused by the ad hoc accused themselves. The accused know that any delay in trial would ad hoc only help him as the memory of the witnesses is likely to be blurred ad hoc by the passage of time....
In the trial of criminal cases a Judge should be a little more active and ad hoc he can contribute to a great extent in preventing the delay in the ad hoc administration of justice. On many occasions the Sessions Judges ad hoc adjourn the cases for long period and the delay is thus caused and ad hoc many witnesses who would have supported the prosecution case lose ad hoc interest in the case and often forget the ethical duty cast on them.
In most of the cases, the blame for delay in administration of criminal ad hoc justice system is put at the door of the courts. Courts are over ad hoc congested with petty cases and many legislations are being enacted ad hoc which result in filing of large number of cases before the courts. ad hoc Inclusion of additional forms of crime, for example, Section 138 cases ad hoc under the Negotiable Instruments Act or Section 498A in the Indian ad hoc Penal Code, contributed a large number of cases in the criminal ad hoc courts. Some of the new legislations like, Domestic Violence ad hoc (Prevention) Act, have come up which contribute some more cases to ad hoc the criminal courts. To deal with these types of cases we do not have ad hoc additional number of courts, we do not have additional infrastructure. ad hoc In many States sufficient budgetary provisions are not made for ad hoc improving the infrastructure of the subordinate courts, including ad hoc additional improvement of existing courts, court complexes.
We require modernization and computerization of our criminal justice ad hoc system. In many States courts are functioning from rented places. The ad hoc building which was constructed for the purpose of residence is being ad hoc used to house courts. There should be sufficient sitting arrangement ad hoc for the witnesses or the clients. There should be suitable building for ad hoc the proper functioning of the courts. The prosecuting agency should ad hoc be given sufficient facilities for the court to conduct the cases. The ad hoc accused and the witnesses should have resting rooms if the trial has ad hoc become lengthy. All this could be provided only if there are courts ad hoc with modern facilities. The States should gradually improve the ad hoc infrastructure and there must be sufficient budgetary allocation in ad hoc each year. Now the courts are provided only with budgetary allocation ad hoc for the payment of salaries of staff members of the courts and for dayto-day expenses for running the courts. This situation could be ad hoc changed, if sufficient funds are allocated every year for starting new ad hoc courts and also to improve the conditions of the existing courts. The ad hoc starting of Fast Track Courts have helped to a great extent in ad hoc disposing of the pending Sessions cases and that, by itself, has proved ad hoc that it is because of lack of large number of courts that the pendency ad hoc of criminal cases is on the rise."11. Presidential address by Hon'ble Mr. Justice K.G. Balalkrishan, CJI, at National Seminar on Delay in ADminstration fo Criminal Justice System, 17.03.2007, Vigyan Bhavan, New Delhi [http://supremecourtofindia.nic.in speeches-2007]. 4. Right To Fair And Speedy Trial 4.1 A fair trial implies a speedy trial.1 While the Sixth Amendment to the ad hoc US Constitution expressly states that "in all criminal prosecutions, the ad hoc accused shall enjoy the right to a speedy and public trial", our Constitution ad hoc does not expressly declare this as a fundamental right. The right to a speedy ad hoc trial was first recognized in the first Hussainara Khatoon case, AIR 1979 SC 1360. In ad hoc Surinder Singh v. State of Panjab, (2005) 7 SCC 387, the Supreme Court held that a speedy ad hoc trial is implicit in the broad sweep and content of Article 21 of the ad hoc Constitution. In Hussainara Khatoon case, AIR 1979 SC 1369, the Supreme Court directed ad hoc that all undertrial prisoners against whom charge-sheets had not been filed ad hoc within the limitation-period should be released. The Court observed in the ad hoc second Hussainara Khatoon case32 that the State can not avoid its ad hoc constitutional obligation to provide for a speedy trial by pleading financial ad hoc or administrative inability. Directions were issued for taking positive action, ad hoc like setting up new courts, providing more staff and equipment to courts, ad hoc appointment of additional judges and other measures calculated to ensure ad hoc speedy trial. 1.State of Maharashtra v. Champalal Punjaji Shah, AIR 1981 SC 1675. 4.2 Subsequently, the Supreme Court has repeatedly emphasized the importance of speedy trial in many cases. State of Bihar v. Uma Shankar Kotriwal. AOR 1981 SC 641; Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167; State of Maharashtra v. Champalal Punjaji Shah,1 ; S. Guin V. Grindlays Bank, AIR 1986 SC 289; Sheela Barse v. Union of India, AIR 1986 SC 1773; Raghubir Singh v. State of Bihar, (1986) 4 SCC 481; Rakesh Saxena v. State, (1987) 1 SCR 173 ; Srinivas Pal v. Union Territory of Arunachal Pradesh, AIR 1988 SC 1729; State of Andhra Pradesh v. P. V. Pavithran, AIR 1990 SC 1266. In Abdul Rehman Antulay v. R.S. Nayak, AIR 1992 SC 1701, the Supreme Court summarized 11 principles as guidelines applicable to a speedy trial. These guidelines are only illustrative and not exhaustive. They are not intended to operate as hard and fast rules or be applied as a straitjacket formula. This decision was held to be correct in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578. 1. State of Maharashtra v. Champalal Punjai Shah, AIR 1981 SC 1675. 4.3 The speedy trail is guaranteed under Article 21 of the Constitution of India. Any delay in expeditious disposal of criminal trial infringes the right to life and liberty guaranteed under Article 21 of the Constitution of India. The debate on judicial arrears has thrown up number of ideas on how the judiciary can set its own house in order. Alarmed by the inordinate delay in disposal of the backlog of cases, it has been decided to introduce Fast Track Courts. Thus, Fast Track Courts are to tackle the cases of undertrials first, as the graph of such persons in jail has gone high. It is high time to restore the confidence of people in this country in judiciary by providing speedy justice.1 1. Dr. Justice AR. Lakshamanan, Voice of Justice, Universal Law Publishing Co., Pvt. Ltd., Delhi, (2006), p. 245. 4.4 Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.1 1. Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158 (Best Bakery case). 5. Fast Track Courts 5.1 The Eleventh Finance Commission recommended a scheme for creation of 1734 Fast Track Courts in the country for disposal of long pending Sessions and other cases. The Ministry of Finance, Government of India sanctioned an amount of Rs. 502.90 crores as "special problem and upgradation grant" for judicial administration. The scheme was for a period of 5 years. Out of 18.46 lakh cases transferred to them, 10.66 lakh cases were disposed of by these courts at the end of the said scheme on 31.03.2005. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31.03.2010 with a provision of Rs. 509 crores as 100 percent central assistance.1 1. Annual Report 2006-2007, Ministry of Law and Justice, Government of India, New Delhi, p.45. 5.2 In his address1 at a Joint Conference of Chief Ministers and Chief Justices, at Vigyan Bhawan, New Delhi on 08.04.2007, Hon’ble Mr. Justice K. G. Balakrishnan, CJI, expressed the view that these courts have been quite successful in reducing the arrears. Most of the criminal cases in subordinate courts are pending at the level of Magistrates. Keeping in view the performance of Fast Track Courts of Session Judges, the Government of India should formulate a similar scheme for setting up Fast Track Courts of Magistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11.03.2006. Similar views were expressed by Hon’ble Mr. Justice B. N. Agrawal, Judge, Supreme Court of India, on 01.08.2007 at the Lecture Series organized by the Supreme Court Bar Association.2 Recently speaking at a function, the Chief Justice of India suggested setting up of separate courts to deal with dishonour of cheque case under section 138 of the Negotiable Instruments Act to improve liquidity.3 1. (2007) 4 SCC J 13. 2. (2007) 6 SCC J-1 3. The Hindustan Times, New Delhi, 14-10-2008. 5.3 In this era of globalization and rapid technological developments, which is affecting almost all economies and presenting new challenges and opportunities, judiciary cannot afford to lag behind and has to be fully prepared to meet the challenges of the age. It is heartening to note that use of information and communication technology in judiciary is growing despite various constraints. Day-to-day management of courts at all levels can be simplified and improved through use of technology including availability of case-law and meeting administrative requirements. Congestion in court complex can also be substantially reduced through electronic dissemination of information. The objectives that can be achieved through use of technology include transparency of information, streamlining of judicial administration and reduction of cost.1 5.4 Increase in the number of judicial officers will have to be accompanied by proportionate increase in the number of court rooms. The existing court buildings are grossly inadequate to meet even the existing requirements and their condition particularly in small towns and moffusils is pathetic. A visit to one of these courts would reveal the space constraints being faced by them, overcrowding of lawyers and litigants, lack of basic amenities such as regular water and electric supply and the unhygienic and insanitary conditions prevailing therein. The National Commission to review the working of the Constitution noted that judicial administration in the country suffers from deficiencies due to lack of proper planned and adequate financial support for establishing more courts and providing them with adequate infrastructure. It is, therefore, necessary to phase out the old and outdated court buildings, replace them by standardized modern court buildings coupled with addition of more court rooms to the existing buildings and more court complexes.1 5.5 Litigation through the courts is just one way of resolving the disputes. Litigation as a method of dispute resolution leads to a win-lose situation leading to growth of animosity between the parties, which is not congenial for a peaceful society. We should, therefore, resort to alternative dispute resolution mechanisms such as negotiations, conciliation and mediation, in which nobody is a loser and all the parties feel satisfied at the end of the day. The main problem being faced in this regard is that there are not many trained mediators and conciliators. We need to impart training in mediation and conciliation not only to judicial officers but also to the lawyers. They will have to develop expertise to act as successful mediators and conciliators. We also need to provide adequate infrastructure for conciliation and mediation centres by giving them adequate space, manpower and other facilities. The Government being the biggest litigant needs to be fully involved in the process and its officers need to take lead in this cause.1 1. (2007) 4 SCC J 13. 6. Conclusions And Recommendations 6.1 Issuing a cheque which is dishonoured is crime in India. But we hardly see any people being punished for bouncing of cheques. People are dissuaded to trust bank cheques. This all because courts in India are awefully overburdened with dishonoured cheque cases. 6.2 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. 6.3 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. 6.4 The Law Commission of India is of the firm opinion that considering the alarming situation of the pendency of cases and the constitutional rights of a litigant for a speedy and fair trial, the Government of India should direct the State authorities for setting up of Fast Track Courts in the country, which alone, in the opinion of the Law Commission, will solve the perennial problem of pendency of cases, which are even summary in nature. 6.5 The Law Commission is of the view that the backlog of cheque bouncing cases need to be speedily disposed of through this measure lest litigants may lose faith in the judicial system. The commercial circles should have confidence that we have quite faster judicial system. 6.6 We, accordingly, recommend as under:
(a) Fast Track Courts of Magistrates should be created to dispose of the dishonoured cheque cases under section 138 of the Negotiable Instruments Act, 1881;
(b) 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.