2019 (9) TMI 320 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - permission sought to cross-examine the respondent-complainant - HELD THAT - Though there is no necessity to recall and reexamine complainant but Magistrate can pass a specific order to recall the complainant. Such an order is to be passed either on an application made by the accused or under Section 145(2) of the Act or suo motu by the Court. This court is not in agreement with the findings recorded by learned Court below, while passing impugned order that the defence plea raised by the accused is neither substantial nor specific. Accused has specifically taken a plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant, as such, accused is well within his right to cross- examine the complainant and its witnesses, specifically on the aforesaid points. Moreover, as has been observed herein above, a careful perusal of the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/re-examination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf. Petition allowed.

Summary

Issues Involved:
1. Legality of the dismissal of the application under Section 145(2) of the Negotiable Instruments Act.
2. Right of the accused to cross-examine the complainant and its witnesses.
3. Interpretation and application of Section 145 of the Negotiable Instruments Act.
4. Relevance and admissibility of evidence given by affidavit.
5. Judicial discretion and mandatory requirements under Section 145(2).

Issue-wise Detailed Analysis:

1. Legality of the dismissal of the application under Section 145(2) of the Negotiable Instruments Act:
The accused was aggrieved by the order dated 2.2.2019 passed by the Chief Judicial Magistrate, Nurpur, which dismissed the application under Section 145(2) of the Negotiable Instruments Act. The application sought permission to cross-examine the complainant, which was denied on the grounds that the accused did not specify what was legally due to the Bank or that the amount mentioned in the cheque was not legally recoverable.

2. Right of the accused to cross-examine the complainant and its witnesses:
The court emphasized that the accused has a right to cross-examine the complainant and its witnesses. The accused had argued that he issued a blank cheque as security, which the complainant allegedly filled with an incorrect amount. The court found that this defense was substantial and specific enough to warrant cross-examination to bring the truth before the court.

3. Interpretation and application of Section 145 of the Negotiable Instruments Act:
Section 145(1) allows the evidence of the complainant to be given by affidavit and read in evidence, subject to all just exceptions. Section 145(2) mandates that the court shall summon and examine any person giving evidence on affidavit if requested by the prosecution or the accused. The court clarified that there is no requirement for the accused to provide reasons for summoning the person who has given evidence by affidavit.

4. Relevance and admissibility of evidence given by affidavit:
The court reiterated that affidavits can be read in evidence, but inadmissible evidence, such as irrelevant facts or hearsay, cannot be considered even if stated in an affidavit. The affidavit serves as the examination-in-chief, and the deponent can be cross-examined on the facts stated therein.

5. Judicial discretion and mandatory requirements under Section 145(2):
The court noted that Section 145(2) uses "may" for the court's discretion and "shall" for the obligation to summon a person giving evidence on affidavit upon application by the prosecution or the accused. The court must summon and allow cross-examination without requiring the party to assign reasons. The court cited judgments from the Supreme Court, including Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore and Indian Bank Assn. v. Union Bank of India, which support this interpretation.

Conclusion:
The court allowed the petition, setting aside the order dated 2.2.2019, and directed the Chief Judicial Magistrate to permit the cross-examination of the complainant and its witnesses. This decision underscores the accused's right to a fair trial and the necessity of cross-examination to ensure justice. All pending applications were disposed of, and interim directions were vacated.