2019 (4) TMI 2105 - HC - Indian Laws

Seeking leave to cross examine the first respondent-complainant - Dishonour of Cheque - petitioner failed to comply with the notice and has even failed to issue any reply to the said notice - HELD THAT - As has been noticed by the learned Magistrate, in normal circumstances, a party is not required to seek leave to cross examine the witness of an adversary. However, the present matter is governed by the law laid down by the Hon'ble Supreme Court in the case of INDIAN BANK ASSOCIATION AND OTHERS VERSUS UNION OF INDIA AND OTHERS 2014 (5) TMI 750 - SUPREME COURT which has been reiterated in a recent decision of the Supreme Court in the case of Meters and Instruments Private Limited anr. vs. Kanchan Mehta, 2017 (10) TMI 218 - SUPREME COURT . It can thus be seen that the trial of the offence under Section 138 of the Act is a class apart and the Magistrate is required to conduct the trial normally in a summary way and in accordance with the procedure laid down for summary trials and in the light of the directions issued by the Supreme Court in the case of Indian Bank Association and Meters and Instruments Private Limited. Coming to the present case, the impugned order cannot be faulted going by the casual nature in which the application, exhibit 12 was filed and the relief was sought. Perhaps, faced with this difficulty, the learned Counsel for the petitioner has sought liberty to file a fresh application setting out the defence and for a direction to the learned Magistrate to decide it afresh. The first point of time when the accused has an opportunity to set out his defence is when he sends a reply to the statutory notice of the complainant. The second such opportunity to set out the grounds is in the application seeking leave to cross examine the complainant. In a given case, the accused can also disclose such grounds during the course of the hearing of the application and in answer to the questions which may be posed by the learned Magistrate as is permissible - liberty granted to the petitioner to file a fresh application as the possibility of inventing a defence in the given circumstances, cannot be ruled out in this case. Petition dismissed.

Summary

Issues:
Challenging order dismissing application seeking leave to cross-examine first respondent-complainant in a case under Section 138 of the Negotiable Instruments Act, 1881.

Analysis:
1. Application for Leave to Cross-Examine: The petitioner filed an application seeking leave to cross-examine the complainant, which lacked details regarding the probable defense or the points for cross-examination. The application was opposed by the first respondent, leading to its dismissal by the learned Magistrate.

2. Legal Considerations: The petitioner's counsel requested an opportunity to file a fresh application with specific grounds for cross-examination. The first respondent opposed this, highlighting the absence of a reply to the statutory notice and, consequently, a lack of a viable defense for seeking cross-examination.

3. Court's Decision: The High Court examined the circumstances and legal precedents, noting that ordinarily, leave to cross-examine an adversary's witness is not required. However, specific directions from the Supreme Court mandate the accused to disclose a defense before seeking cross-examination.

4. Precedents: Referring to judgments like Indian Bank Association vs. Union of India and Meters and Instruments Private Limited vs. Kanchan Mehta, the Court emphasized the need for a specific defense disclosure by the accused before cross-examination in cases under Section 138 of the Act.

5. Dismissal of Petition: The Court found fault with the casual nature of the original application and the lack of a disclosed defense. It declined to grant liberty for a fresh application, as the accused had multiple opportunities to present a defense but failed to do so. The possibility of inventing a defense at a later stage was also considered.

6. Presumption and Defense Evidence: The Court reminded the petitioner of the opportunity to displace any presumption under the Act by leading defense evidence. Ultimately, due to the absence of a disclosed defense and grounds for cross-examination, the petition was dismissed.

In conclusion, the High Court dismissed the petition challenging the order denying leave to cross-examine the complainant, emphasizing the importance of disclosing a defense before seeking such permission in cases under Section 138 of the Negotiable Instruments Act, 1881.