2021 (2) TMI 1345 - HC - Indian Laws

Dishonour of Cheque - Validity of order allowing the accused/respondent no. 1 to cross examine the complainant - it is alleged that accused received the SCN but failed to reply and neglected to comply with the statutory notice and to pay the amount - section 138 of NI Act - HELD THAT - In the present matter also inspite of notice no reply is filed nor notice was complied by the accused. Thus he was having first opportunity to set out his defence. In the normal circumstances the party is not required to seek leave to cross examine the witness of an advisory. In view of the judgment of the Apex Court in RUKMAKAR @ BHARAT TULSHIDAS NAIK VERSUS SANTOSH SHABA GAONKAR ANR 2019 (4) TMI 2105 - BOMBAY HIGH COURT the accused is required to file an application seeking leave to cross examine the complainant. At that juncture the accused is having the second opportunity to set out grounds of his defence. Thirdly even during the arguments on that application and answer to the questions which may be posed by the learned Magistrate which is permissible. But it appears that he has not set out any ground or probable defence. Even in this matter also he failed to file any say and appear in the matter. The learned JMFC erred in granting the application of the accused to cross examine the complainant without there being any probable defence or any reason in the said application. The learned JMFC ought to have considered that there was no reply to the statutory notice nor there is any probable defence set out in the application. Application rejected.

Summary

Issues involved:
Challenge to order allowing cross-examination of complainant and dismissal of application for recall in a criminal case.

Analysis:
1. The petitioner challenged the order allowing the accused to cross-examine the complainant and the subsequent dismissal of the application for recall. The accused had sought financial assistance from the complainant for a land development project, resulting in a friendly loan agreement and subsequent dishonored cheques. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

2. The accused, after pleading not guilty, applied for cross-examination without disclosing a probable defense, which the petitioner contended was done casually. The JMFC allowed the cross-examination without seeking the complainant's input. The petitioner's application for recall was dismissed by the trial court on the grounds of lack of power to recall the order and being filed after six months.

3. The petitioner cited an unreported judgment and a Supreme Court decision emphasizing that the accused must disclose a specific defense when contesting a case. The court noted that the accused failed to file a reply or comply with the notice, missing the opportunity to set out a defense. The court held that the JMFC erred in granting the accused's application for cross-examination without a probable defense, contrary to legal precedent.

4. The court found the JMFC's order to be illegal and against established law, leading to the quashing and setting aside of the orders dated 2.11.2018 and 27.11.2019. The petition was allowed, and the orders in the criminal case were disposed of accordingly.