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Can anyone sue the Court for its inconsistencies?

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

On 23rd March,2020, national newspapers carried this report. Over 8,000 cheque bounce cases have been disposed of in Tamil Nadu in 2019, with settlement totalling 208.39 crore, according to data provided in Parliament. A total of 61,384 cases were taken up, of which 8,287 cases were disposed during January-December 2019 by National Lok Adalats organised by National Legal Services Authority of India, Anurag Singh Thakur, Union Minster of State for Finance, recently told the Rajya Sabha said in a written reply.

Mr. Singh was responding to a question raised by Ram Vichar Netam (BJP) on the cheque bounce cases. The Act addresses the issue of undue delay in final resolution of cheque bounce cases, with an object to provide substantial relief to payees of dishonoured cheques and discourage frivolous and unnecessary litigation with respect to cheque dishonour cases, which would save time and money, the Minister said.

This was obviously in the context of efficacy of the amendments to the NI Act,1887 and the manner of tackling the pendency arising there from .For those in the know of things, particularly, the docket explosion in this portfolio, in each of the hierarchical tiers, it is a humongous issue facing the courts. The Courts are swamped by these private complaints as banking transactions have burgeoned, but the dishonesty of those who tuck into it, has shown no dissipation. The cheques are issued for the asking and they bounce like mad on the faces of the recipients. The Central Government has been tweaking the law, every now and then, including in 2018, providing for the remedy of an interim payment or compensation. Nothing matters. We The people aided and assisted by the crafty legal fraternity are one step ahead of them, in keeping the pendency going.

That is one part. But the Hon’ble Supreme Court of India has played the other part. Their shifting stands on the legal position has meant that there has been whole scale alterations, necessitating thousands of cases pending before the High Courts, being sent to the Sessions Courts, and now the Covid-19 like viral is looming large, with a consequential verdict from the Madras High Court (other High Courts may also be compelled to follow) for a reverse exodus to the High Court.

Already the pendency is huge before various courts. Over 4 crore cases are pending all over India. The Coronavirus Pandemic has come as a boon to the legal fraternity with a bonus 21 day Lockdown adding to the existing customary summer Lockdowns. The exacerbation is complete. Covid-19 impacts the breathing faculties and this near certain development of the reverse exodus of cases Sessions Courts (in several thousands) and this phenomenon would not let the litigants in this jurisdiction, breathe easy, even after the battle with Covid-19 virus is over (if and whenever).

Ordinarily, when a matter is sub judice- under the scanner of the court- academicians avoid second guessing a conclusion. It is a matter of propriety. Here, I intend to play around the edges of this propriety vector. But step off just near the precipice. The reason one is tempted to tiptoe into this taboo terrain, is because the result of the pending reference before a full Bench of the Madras High Court is so obvious that it would be no revealing of a secret or prompting the law lords, even by a whit. With requisite propriety seatbelts on, here is the story in simple terms, cutting out the legalese, as is permissible, within the limits of the remit of this piece.

Sec.138 of NI Act, 1887 introduced a new species of ‘offence’ upon dishonour of cheques, to give meaning to business/financial transactions. Private complaints came to be lodged before Magistrate Courts. Upon conviction of the accused, appeals were available before the Districts & Sessions Courts. In the absence of any other provision for appeal against acquittal of accused, the complainants were entitled to file appeals before the respective High Courts under Sec.378 of Cr. Procedure Code, 1973. That is where matters rested, and it was a simple, straightforward understandable dispensation.

Historically, in India, in criminal cases, which begin with a FIR, it is the State that prosecutes the offenders. The ‘victim’, be it the family of the murdered or any other such like, for respective criminal offences, the ‘victim’ only got the right to ‘assist the prosecution’. It is very well or rather too well known that while the police investigation leaves a lot to be desired and the political appointees in public prosecutors were no match to the lawyers on call from the side of the defence. The latter could tap into the best, while the victim was a mute witness, as the Court played with his or her fate.

Clarion calls kept going out that while the entire world has moved on, providing a direct remedy to the ‘community of victims’, why was or should India lag behind. Justice Malimath Committee, Law Commission Reports, seminar circuits and the High Courts and Supreme Court judgments, all of them joined in the cacophony, and the noise triggered Parliament to deign and amend Sec.372 of Cr.PC, as of 31st Dec, 2009, enabling an appeal to the ‘community of victims’ against the acquittal of the accused, independent of the right of the State as prosecutor, to challenge it. The victimised community of victims could see light at the end of the tunnel.

Sorry, law is not an ass for nothing. Law is language. Law is science. It is an art. It is sophistry. It is the whole works except that law is not always justice. That is the problem. While the expression ‘victim’ was defined under the Code, the expression ‘complainant’ was not. In Parliament, rarely the left hand knows what the right hand is giving or taking away. So, while Proviso was introduced to Sec.372, no change was made in Sec.378, though it cried for it. That is where the craftsmen in legal fraternity hemmed in to fill up the vacuum, crevices or gap, whether they existed or not to play on the words and elevate it into a constitutional plane, which was not there.

In 2010 the Supreme Court in Damodar Prabhu (SC) had ruled that appeal against acquittal of accused in ‘cheque bounce cases’ by complainants was by resort to the existing Sec.378 and to the High Court from the decision of the Magistrate Court. Without so much as casting a glance at this judgment, in Sathyapal (SC), the apex court ruled that Secs.372 and 378 had to be read in tandem, and not in silos. The learned judges dug deep into constitutional rules of interpretation and concluded that the remedy for losing private complainants in ‘cheque bounce cases’ was to move the Sessions Court itself, with a leave to file appeal. This pronouncement came from nowhere. It upset the applecart completely. Supreme Court did not say that the said decision would apply prospectively.

The result. In a Full Bench reference before the Madurai Bench of the Madras High Court, in Ganapathy (FB),three learned judges said Sathyapal (SC) was the law of the land. So, all the appeals thus far filed and pending as on 5th April, 2016 shall go seeking mercy before the Sessions Courts . All filing thereinafter, shall also be before the Sessions Courts alone. Thousands of such appeals pending before the High Court were sent packing to the Sessions Courts.

Now, even before the litigants and legal fraternity could settle down, came the verdict in Mallikarjun Kodagili (SC) (Excuse me, what do you think we lawyers and judges need, if not at least 3 years to settle down in any cause? You see we strongly believe in the dictum Hurried Justice is Buried Justice even if you may shout Justice Delayed is Justice Denied). In Mallikarjun Kodagali (SC), the Supreme Court categorically ruled that Sec.372, as amended in 2009, was meant and confined to the ‘community of victims’ relatable to FIR or Police cases, and did not belong to ‘complainants’ in private complaint cases. Sathyapal (SC) was held to be bad law. And to make it clear, Mallikarjun Kodagali (SC) was followed by Naval Kirshore Mishra (SC) also.

Back to the High Court. What does a learned single judge do? In M Venkataraman (Mad), he captures the entire history of what has been delineated above, in many, many more pages, and expresses dismay and anguish and throws up his hands saying, “What am I supposed to do now? Even if were to follow the newly laid down path in MJallikarjun Kodagali (SC) as the law of the land, what of those cases which have been sent back to Sessions Courts since 5th April,2016 and what happens to those cases already disposed of and escalated to the High Court? The learned judge simply said, “Sorry, I don’t know what to do.” He sent his “What am I to do?” lament to the Chief Justice of Madras.

The Chief Justice exercised his powers to refer the “What are we to do now” lament to a Full Bench of the Madras High Court (again) . This Full Bench has heard submissions from a host of lawyers and their associations and reserved orders. This is where the tricky propriety part comes in. One is not supposed to second guess what the Full Bench has to do or ought to do. But, surely it is not impropriety to suggest this is what they may do or likely to do, from what transpired in the court proceedings, as it impacts the lives, liberties, cash and properties of literally lakhs of litigants, all over India. The impact of this verdict may resonate Pan India, as this may be laying down the way to go for those cases which had already been sent to the Sessions Courts and pending there (Disclaimer: This author was one of those who addressed the Court and hence is privy to what transpired).

 There was near unanimity during the proceedings that Ganapathy (FB) was no longer good law in view of the latest pronouncements from the top court in Mallikarjun (SC) and Naval Kishore Mishra (SC). So, all the cases that had been sent to the Sessions Courts, on and from 5th April, 2016 till say 3rd Feb,2020, the day the Full bench took the handle, have to be come back to the High Court. Let us not enter into further technical thicket of the fate of those already disposed of, by Sessions Courts or escalated to High Court and disposed of there also. Let us respectfully leave it to the learned minds on the Full Bench to grapple and solve the riddle, for us.

It may suffice for the purpose of this article of public interest to note that thousands of appeals, pending before High Court, Madras, as on 5th April,2016, were sent packing lock, stock and barrel thanks to Sathyapal (SC). Now, they may have to be packed all over again to be sent back to the High Court, in reverse exodus, thanks to Mallikarjun Kodagil (SC) and Naval Kishore Mishra (SC). Who is to blame for this imbroglio of huge proportions seriously prejudicing the interests of thousands of common litigants? How long more they may need to wait to see the colour of the coin or culmination of the cause? It would be advisable not to answer these pregnant queries and let them be.

One interesting fall out is whether any litigant can sue a Court for its shifting stands and the ensuing delay and the impact or prejudice caused to the litigant by reason of it? Sorry, we would be barking up the wrong tree if we even explored such avenues. As Lord Denning said, “What a Court does is what a Court does.” The remedy lies in the portals of the Courts, in appellate jurisdictions, or before Parliament to get the law changed. As Associate Justice Antonin Scalia put it beautifully, in his impish style, “What a huge relief to sit on the bench and decide the law today, one way, and tomorrow another way, without ever worrying, who may sue you tomorrow or thereafter for shifting allegiances. You don’t need to tell them why you changed your positions as that is the way law works for it is after all the call of a Judges’ conscience”. Some conscience!

 (Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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