2019 (12) TMI 169 - HC - Indian Laws

Dishonor of cheque - section 138 of NI Act - Permission to examine/cross-examine the complainant - whether in terms of Section 145(2) of the Act, it is mandatory for the applicant, seeking cross-examination of the complainant, to assign reason(s) for recalling/reexamination/ cross-examination of the complainant? HELD THAT - This court has specifically ruled that the second part of Section 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, as such, order passed by learned Court below, rejecting the application of the accused for examination/cross-examination of the complainant is against the provisions of Section 145(2) and deserves to be rectified by this Court. Moreover, no prejudice, whatsoever, would be caused to the complainant, in case complainant and/or his witnesses are examined/cross-examined, rather, this would enable court below to render proper adjudication of the controversy inter se parties. Petition allowed.

Issues Involved:
1. Whether it is mandatory for the applicant seeking cross-examination of the complainant under Section 145(2) of the Negotiable Instruments Act to assign reasons for the same.

Issue-wise Detailed Analysis:

1. Mandatory Requirement to Assign Reasons under Section 145(2) of the Negotiable Instruments Act:
The primary issue for determination in this case was whether an applicant seeking cross-examination of the complainant under Section 145(2) of the Negotiable Instruments Act is required to assign reasons for recalling/re-examination/cross-examination of the complainant. The court examined the provisions of Section 145 of the Act, which allows the evidence of the complainant to be given by affidavit and permits the court to summon and examine any person giving evidence on affidavit.

The court noted that Section 145(2) is divided into two parts. The first part provides that the court may, on its own, summon the accused to examine him regarding the contents of the affidavit. The second part mandates the court to summon a person who has given evidence by affidavit if an application is made by the prosecution or the accused. The court observed that this provision does not require the applicant to assign reasons for summoning the person who has given evidence by affidavit.

The court referred to the judgment in *Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore* (2010) 3 SCC 83, which clarified that Section 145(2) does not suggest that the person giving evidence on affidavit must start deposition in court with examination-in-chief before being cross-examined. The affidavit itself is considered as examination-in-chief, and the deponent can only be subjected to cross-examination regarding the facts stated in the affidavit.

Further, the court cited the judgment in *Indian Bank Assn. v. Union Bank of India* (2014) 5 SCC 590, which reiterated that there is no necessity to recall and re-examine the complainant unless the Magistrate passes a specific order to that effect. Such an order can be passed either on an application made by the accused or suo motu by the court.

In the present case, the accused had filed an application under Section 145(2) seeking permission to cross-examine the complainant, claiming that a false case had been planted against him and that the cheque in question was issued as security with a wrong amount filled in by the complainant. The trial court dismissed the application, stating that the accused had not provided sufficient reasons for cross-examination.

The High Court found this reasoning to be flawed, emphasizing that the accused had specifically mentioned in his application the need to cross-examine the complainant to protect his interests and bring out the truth. The court held that the second part of Section 145(2) does not require the applicant to assign reasons for the application, making it obligatory for the court to recall the complainant or its witnesses if an application is made.

The court concluded that no prejudice would be caused to the complainant if cross-examination were allowed, and it would aid in the proper adjudication of the case. Consequently, the High Court set aside the trial court's order and allowed the application under Section 145(2), directing the lower court to fix a date for the examination/cross-examination of the complainant/witnesses.

Conclusion:
The judgment clarified that under Section 145(2) of the Negotiable Instruments Act, it is not mandatory for the applicant to assign reasons for seeking cross-examination of the complainant. The court emphasized that it is obligatory for the court to allow such applications to ensure a fair trial and proper adjudication of the case. The High Court set aside the trial court's order and allowed the accused's application for cross-examination, reinforcing the principle that procedural fairness must be upheld in legal proceedings.

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