Case Note & Summary
The applicants, Subhash Atmaram Sharma and Mayur Jitendra Shah, were facing trial for an offence under Section 138 of the Negotiable Instruments Act, 1881, before a Magistrate in Mumbai. They appeared in response to summons issued by the court. The Magistrate directed them to furnish a bail bond of Rs.5,00,000/- each with a surety of Rs.2,00,000/- each. The applicants challenged this order before the Bombay High Court, arguing that they were permanent residents of Mumbai, had appeared voluntarily, and had never been arrested. They contended that there was no reason to impose such oppressive bail conditions. The High Court observed that in almost all cases under Section 138 NI Act, Magistrates routinely direct accused to furnish personal bonds and surety bonds, often in amounts disproportionate to the cheque amount, causing hardship. The court noted that Section 138 cases are tried as summary summons cases, and execution of personal bond and surety bond is not a condition precedent for commencement of trial. The court held that the Magistrate should not fix oppressive amounts and should release the accused on personal bond without sureties unless there is a specific reason to impose stricter conditions. The High Court modified the order, directing the applicants to be released on executing a personal bond of Rs.25,000/- each without sureties, and directed the trial court to proceed with the trial without insisting on sureties.
Headnote
A) Criminal Procedure - Bail Conditions in Summons Cases - Section 138 Negotiable Instruments Act, 1881 - The court held that in summons cases under Section 138 NI Act, execution of personal bond and surety bond is not a condition precedent for commencement of trial. The Magistrate must not fix oppressive amounts based on the cheque amount. The accused, having appeared on summons, should be released on personal bond without sureties unless there is a specific reason to impose stricter conditions. (Paras 3-6)
B) Criminal Procedure - Inherent Powers of High Court - Section 482 Code of Criminal Procedure, 1973 - The High Court, in exercise of its inherent powers, can modify bail conditions imposed by the Magistrate to prevent abuse of process of court and secure the ends of justice. The court directed the applicants to be released on executing a personal bond of Rs.25,000/- each without sureties. (Para 6)
Issue of Consideration
Whether the Magistrate was justified in directing the accused to furnish a personal bond of Rs.5,00,000/- and surety bond of Rs.2,00,000/- in a summons case under Section 138 of the Negotiable Instruments Act, 1881, when the accused had appeared voluntarily and there was no apprehension of abscondence.
Final Decision
The High Court allowed the application and modified the order of the Magistrate. The applicants were directed to be released on executing a personal bond of Rs.25,000/- each without sureties. The trial court was directed to proceed with the trial without insisting on sureties.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- bail conditions
- personal bond
- surety bond
- summary trial
- summons case
- oppressive conditions
- inherent powers
- Section 482 CrPC
Case Details
Criminal Application No.992 of 2014
Mr. M.P. Dalvi for Applicants, Mr. D.R. More, APP for Respondent No.1-State, Mr. Ashwin Havelikar i/b Mr. Hiren Mehta for Respondent No.2
Subhash Atmaram Sharma and Mayur Jitendra Shah
State of Maharashtra and M/s. Barclays Bank PLC
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Nature of Litigation
Criminal application challenging the order of the Magistrate directing the applicants to furnish bail bond of Rs.5,00,000/- each with surety of Rs.2,00,000/- each in a case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The applicants sought modification of the bail conditions imposed by the Magistrate, contending that they were oppressive and unnecessary as they had appeared on summons and were permanent residents.
Filing Reason
The applicants were directed by the Magistrate to furnish a bail bond of Rs.5,00,000/- each with surety of Rs.2,00,000/- each, which they found oppressive and difficult to comply with.
Previous Decisions
The Magistrate had passed the order directing the applicants to furnish bail bonds. The applicants had appeared in response to summons and had never been arrested.
Issues
Whether the Magistrate was justified in imposing a personal bond of Rs.5,00,000/- and surety bond of Rs.2,00,000/- on the accused in a summons case under Section 138 NI Act when the accused had appeared voluntarily.
Whether the High Court should exercise its inherent powers under Section 482 CrPC to modify the bail conditions.
Submissions/Arguments
The applicants argued that they are permanent residents of Mumbai, appeared immediately on summons, and were never arrested. There was no apprehension of abscondence, and the bail conditions were oppressive.
The learned APP and counsel for respondent No.2 did not oppose the modification, but the court considered the general practice of Magistrates in Mumbai.
Ratio Decidendi
In summons cases under Section 138 of the Negotiable Instruments Act, 1881, execution of personal bond and surety bond is not a condition precedent for commencement of trial. The Magistrate must not fix oppressive amounts based on the cheque amount. The accused, having appeared on summons, should be released on personal bond without sureties unless there is a specific reason to impose stricter conditions.
Judgment Excerpts
In the first place learned Trial Magistrates shall note that the cases under section 138 of Negotiable Instruments Act are tried as summary cases and attendance of the accused is secured by issuance of process of summons.
In such cases the learned Magistrate shall also take note of the legal position that execution of personal bond and surety bond is not a condition precedent for commencement of trial.
The learned Magistrate shall not fix oppressive amount of personal bond and surety bond.
Procedural History
The applicants were summoned by the Magistrate in a complaint under Section 138 NI Act. They appeared and were directed to furnish bail bonds. They filed Criminal Application No.992 of 2014 before the Bombay High Court challenging the bail conditions. The High Court admitted the application and, by consent, took it up for final hearing and disposed it on 20th March 2015.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973 (CrPC): 482
