In N. Harihara Krishnan v. J.
Thomas [N. Harihara Krishnan v. J. Thomas,
(2018) 13 SCC 663 adverting to the ingredients of Section 138 of the Negotiable
Instruments Act, the Hon’ble Apex Court observed as follows:
“Obviously such complaints must contain
the factual allegations constituting each of the ingredients of the offence
under Section 138. Those ingredients are: (1) that a person drew a
cheque on an account maintained by him with the banker; (2) that such a
cheque when presented to the bank is returned by the bank unpaid; (3)
that such a cheque was presented to the bank within a period of six months from
the date it was drawn or within the period of its validity whichever is
earlier; (4) that the payee demanded in writing from the drawer of the
cheque the payment of the amount of money due under the cheque to payee; and (5)
such a notice of payment is made within a period of 30 days from the date of
the receipt of the information by the payee from the bank regarding the return
of the cheque as unpaid.”
The provisions of Section 141
postulate that if the person committing an offence under Section 138 is a
company, every person, who at the time when the offence was committed was in
charge of or was responsible to the company for the conduct of the business of
the company as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished.
In the absence of the company
being arraigned as an accused, a complaint against the appellant was therefore
not maintainable. The appellant had signed the cheque as a Director of the
company and for and on its behalf. Moreover, in the absence of a notice of
demand being served on the company and without compliance with the proviso to
Section 138, the High Court was in error in holding that the company could now
be arraigned as an accused. Himanshu
v. B. Shivamurthy, (2019) 3
In MMTC Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234, it was held as under:
“Even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 of the Negotiable Instruments Act, the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the “stop-payment” instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. A court cannot quash the complaint on this ground.” Pulsive Technologies Private Limited v. State of Gujarat, (2014) 13 SCC 18.
The reasonableness and credibility of the information is not a condition precedent to the registration of a case. The import of casting a mandatory obligation on the Officer-in-Charge of a police station to record information relating to the commission of a cognizable offence and to register a case thereon, has been emphasized in the decisions of the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1991 (28) ACC 111 (SC) and in Prakash Singh Badal v. State of Punjab, (2007) 1 SCC 1. At the same time arrest of an accused immediately on the registration of an FIR has been held not to be mandatory. The Criminal Procedure code confers a power upon the police to close a matter both before and after the investigation. A police officer can foreclose an FIR before an investigation under Section 157, if appears to him that there is no sufficient ground to investigate it. The police officer is empowered also to investigate the matter and file a final report under Section 173. In Lalita Kumari v.Government of Uttar Pradesh, 2014 (84) ACC 719 (SC), it was held that the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to the commission of a cognizable offence. The scheme of the Code not only ensures that the time of the police should not be wasted on false and frivolous information but also that the police should not intentionally refrain from doing its duty of investigating cognizable offences. Jagannath Verma v. State of U.P., 2015 (88) ACC 1 (FB).
In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the court referred to the decision in Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 and noted the suggestion about the aggravating and mitigating circumstances as under:
Aggravating Circumstances.— A court may, however, in the following cases impose the penalty of death in its discretion:
(a) If the murder has been committed after previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) While such member or public servant was on duty; or
(ii) In consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) If the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the Code of Criminal Procedure.”
Mitigating Circumstances.—In the exercise of its discretion, the court shall take into account the following circumstances:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance.
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(d) The probability that the accused can be reformed and rehabilitated.
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(f) That the accused acted under the duress or domination of another person.
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.
No arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.
A person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police office before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.
In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273.
Section 145(1) of the Negotiable Instruments Act gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The court has to accept the same even if it is given by way of an affidavit. The second part of Section 145(1) provides that the complainant’s statement on affidavit may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceedings. Section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, the court may fix up the case at an early date and ensure day-to-day trial. Indian Bank Association v. Union of India, (2014) 5 SCC 590.
Fair Trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair Trial entails the interests of the accused, the victim and of the Society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the “majesty of the law” and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.
Denail of a fair trial is as much injustice to the accused as is to the victim and the society. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but seen to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. “No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State Machinery and that is the raison d’etre in prescribing the time frame” for conclusion of the trial.
Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, An important facet of a democratic polity and is governed by the rule of law. Denial of fair trial is crucifixion of human rights. J. Jayalalithaa and others v. State of Karnataka, (2014) 2 SCC 401.