The Sikkim High Court Bar Association had received an email from the Vice Chairman, e-Commit-

tee, Hon’ble Supreme Court of India dated 1/9/2021 through the office of the Registrar General,
High Court of Sikkim. The said e-mail contained a final report on survey for speedy disposal of
cheque bouncing cases (12th August, 2021 to 27th August, 2021), requesting for the views of the
Learned High Court of Sikkim on the final survey report.
In light of this, views of the Sikkim High Court Bar Association have been sought by this Hon’ble
Court.

The Queries and the views of this Bar Association have been listed as below:

1. Could appeals and revisions be restricted to only one chance and be heard by special
courts of sessions?

It is the opinion of this Bar Association that Appeals and Revisions should ideally be restricted to
only one chance because of the effect of deterrence such a restriction would have on the com-
plainant. This would also ensure that the frequency of complaints go down as the number of com-
plaints with weak merit could automatically sift itself out, thereby resulting in genuinely compelling
cases approaching the courts. The primary observation made from this is the fact that the Alterna-
tive Dispute Resolution practices could also become more popular as a result, considering the fact
that the Hon’ble Supreme Court made the observation in Damodar S. Prabhu v. Sayed Babalal H.,1
that the criminal justice system in India is being “Choked” due to the large number of cases pertain-
ing to the dishonouring of cheques. Such restrictive measures could prompt many potential litigants
to approach the Alternative Dispute Resolution mechanisms instead of approaching courts in the
hopes of attaining swift justice. This would also lessen the unnecessary strain currently being im-
posed upon the judicial system.

2. Should there be special courts only for dealing with cases under section 138 of the N.I. Act?

To deal with the alarming backlog of cases that the judicial system has been burdened with, it is im-
portant that Special Courts dealing exclusively with cases under section 138 of the N.I. Act would
go a long way in aiding the filtering process. The Hon’ble Supreme Court has observed in the Writ
Petition of Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881,2
that the vast backlog of cases could also somewhat indicate a necessity for specialised courts that
would not only handle matters in an expeditious manner, but also ensure that there is adequate spe-
cialisation and research done in this super specialised umbrella. This Bar believes that the observa-
tions made by the Supreme Court are in every manner and sense, in grasp with the reality of the sit-
uation. Although submissions made by the Union Government may indicate otherwise,3 merely
putting blame on just one aspect of the issue does not bridge the gap between the issue and possible
solution. While the lack of presence of the accused may be an important factor for the long gesta-
tion period of the proceedings, we would like to point out that it is not the only one. The Learned
High Court of Uttarakhand in ASIAN GALAXY PVT. LTD. vs SIDHIVINAYAK ELECTRIC4 had
observed that the right to speedy justice is a fundamental right guaranteed to persons under the Con-
stitution of India. The Counsel for the Appellant had drawn attention of the Learned Court towards
Section 143 (3) of the Negotiable Instruments Act, which reads that trials under this section should
be conducted expeditiously and an endeavour must be made to ensure that the trial concludes within
six months from the date of filing of the complaint.

1 CRIMINAL APPEAL NO. 963 OF 2010 [Arising out of SLP (Crl.) No. 6369 of 2007].
2 SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020.
3 https://www.hindustantimes.com/india-news/centre-differs-with-sc-on-additional-courts-for-
cheque-bounce-cases-101614796853190.html
4 C-482 No.2246 of 2019.
3. Should All States Levy Court Fees for cases under sec. 138 N.I. Act?

While it may be safe to say that Court Fees should be levied for cases under Section 138 of the N.I.
Act, it must not be forgotten that the primary reason for the filing of such cases is the contention of
a substantial amount of financial loss being incurred by the complainant. This means that the levy-
ing of Court Fees could potentially be a major deterring factor for a complainant who could other-
wise be under financial stress.

4. Should Cheque Bouncing be decriminalised?

The aftermath of the Covid-19 outbreak saw the Government of India adopt certain views and pro-
pose the implementation of changes to the existing mechanism amongst many spheres, the N.I. Act
being one of them.5 The primary reason stated for this was to ensure the unclogging court processes
as well as improving the business sentiment.6 The decriminalisation of Cheque Bounce has been
sought by the Ministry, and while it may offset the difficulties currently faced by many business-
men in the process of conducting their businesses, it is important to note that it brings about a “Grey
Area” and there is risk of increased malafide acts in this regard.

5. Should Arbitration be made Mandatory?

Mandatory Arbitration would lessen the burden of the courts, while also providing more scope for
clearing liabilities of the defendant if there is a genuine case made by the complainant. It is the be-
lief of this Bar Association that mandatory arbitration is a positive step in the right direction.

6. Should every proceeding filed be first referred for Mediation?

As mediation brings about a conflict free resolution in many cases, this would sift out the number of
cases being finally referred to the courts for pre-summons. This Bar Association is of the opinion
that proceeding filed is a positive initiative.

7. Should standard templates be developed and prescribed to facilitate e-filing?

This Bar Association believes that while not every instance of Cheque Bounce matters would be
identical to each other, there is still a possibility of a small minority of cases which would not fit the
parameters of the standard templates. However, the wide majority of submissions would fit the stan-
dard templates and would definitely consider e-filing facilitation a boon. Added to this is the social
distancing measures that have been universally adopted as a normal, it would avoid the physical
presence of all persons who otherwise could do the same from outside the court premises.

8. Should facilities for On-line verification of complaints (examination of complainant) be pro-

vided?

As stated earlier, the Covid norms that are currently in place and the rise for need to ensure that
works where unnecessary physical presence be not mandated, online verification of complaints
could be a welcome change amongst many litigants who otherwise would have to spend working
hours travelling to and from the courts merely to submit the necessary documents, and have to wait
in queues.

5 Government of India, Ministry of Finance- Department of Financial Services Notification dated

8th June 2020, accessed at <https://financialservices.gov.in/sites/default/files/Decriminalization
%20-%20Public%20Comments.pdf>.
6 Ibid.
9. Should the form of summons to the accused be modified to inform the accused of the ADR
options available.

As the existing Cheque Bounce complaints is criminal in nature, and the Indian legal system is one
where the accused is presumed to be innocent until proven guilty, the spirit of Article 14 should in
the opinion of this Bar Association, be invoked. The words “Equality Before the Law and Equal
Protection of The Law” show that while it is important to notice the legal rights of the Complainant,
it is equally important to not forget that there are certain rights that must be granted to the Accused
to ensure that the scales of justice is maintained. Therefore, in conclusion, it would be in the accor-
dance with the Principles of Natural Justice to ensure that the available recourse such as ADR be
known to the Accused.

10. Should the form of summons to the accused be modified to inform the accused of the re-
quirement to indicate Defence?

A form of summons with an information to the accused of the requirement to indicate Defence
would be a beneficial addition and this Bar Association welcomes and concurs with the votes of the
vast majority (84.15%) regarding this question.

11. Should Verification/Examination of the complainant be conducted to check if all condi-

tions for the issuing process exist?

This Bar Association concurs with the majority votes affirming the question (91.8%)

13. Should the banks provide contact details of the customer in cheque dishonour memo to fa-
cilitate service of process?

While the idea may seem as though it would streamline the process, this Bar Association believes
that on the other hand, there is a question of breach of confidentiality, as well as privacy rights of
the customer being violated as the Fundamental Rights of a human are inalienable, and cannot be
taken away from them at any cost. In Puttuswamy v. Union of India,7 the Hon’ble Supreme Court
ruled that while a three pronged test is instituted to impose reasonable restrictions, the Right to Pri-
vacy is a Fundamental Right, guaranteed by Articles 14, 19 and 21 of the Constitution of India.8
Amongst the three pronged test, there must be a law that justifies an encroachment on privacy. In
Cheque Bounce cases, this Bar Association believes that providing contact details of the customer
in cheque dishonour memo to facilitate the service of process would amount to an infringement of
the fundamental right to privacy. The right to an Expeditious trial cannot possibly outweigh a Fun-
damental Right that is inalienable.

14. On Non-appearance of offender despite service, could the hearing proceed ex-parte?

This Bar Association concurs with the majority sentiment reflected in the poll results (78.69% voted
YES). The predominant reason behind such belief is the fact that as far as the onus on the Judicial
System is concerned, the responsibility lies until such time that communication has been made. Fur-
thermore, according to the report of the Amicus Curiae,9 there are more than 35 Lakh Cheque
Bounce Cases pending in the judicial system in India. Now, amongst these it was reported that more
than 18 Lakh cases are pending due to Absence of Accused. If genuine reasons are sought and costs
upon failure to satisfy the Courts regarding the absence be instituted, it could be a move in the right

7 (2017) 10 SCC 1.
8 Ibid.
9 Supra note 2.
direction. However, there is a possibility that there may be a few accused who have, in fact engaged
in absence from the proceedings with mala fide intentions to prolong the matter. In such cases, a
mechanism could be devised where certain parameters be set, and upon failure to fulfil these param-
eters, the hearing proceed ex-parte.

15. Should the courts mandatorily resort to provisions of ss. 82, 83 CrPC about proclamation
of absconder and attachment in case of non-appearance of the accused?

The Learned Madras High Court observed in K. Govindaraj v. Subbian,10 that the primary reasons
behind ss. 82, 83 CrPC procure an accused who is avoiding prosecution by absconding or conceal-
ing himself. The purpose of such provisions is to act as deterrent to all those persons who may be
harbouring the intention to abscond from the proceedings, thereby delaying it altogether. Therefore
this Bar Association believes that a mandatory resorting to the provisions of ss. 82, 83 CrPC would
amount to a noticeable change in the attitude of the parties in cheque bounce cases to ensure that
justice is swift and fair.

16. Have you issued the cheque? (Whether the Magistrate must be required to ask)

This Bar Association concurs with the majority view in the poll answering with an affirmation.

17. If not, was it stolen, lost? Did you inform the police/bank? (Whether the Magistrate must
be required to ask)

This Bar Association concurs with the majority view in the poll answering with an affirmation.

18. Was it Dishonoured? (Whether Magistrate must be required to ask)

This Bar Association concurs with the majority view in the poll answering with an affirmation.

19. Did you receive notice of demand? (Whether the Magistrate must be required to ask)

10 Crl.O.P.No.18113 of 2017.