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2020 (2) TMI 470 - HC - Indian LawsPrinciples of natural justice - Dishonor of Cheque - section 138 of NI Act - opportunity to cross-examine the witness - right to move an application under Section 145(2) NI Act was already closed - HELD THAT - Section 145(2) Negotiable Instruments Act, 1881 mandates that once an application by the accused is filed, the court is obliged to summon the person who has given evidence on affidavit in terms of Section 145(1) N.I. Act, 1881. Reliance placed in the case of MANDVI CO-OP. BANK LTD. VERSUS NIMESH B. THAKORE 2010 (1) TMI 570 - SUPREME COURT where it was held that The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant s evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant s evidence and to extend the same option to the accused as well. The trial court ought to have allowed the petitioner s application filed under Section 145(2) N.I. Act - the present petition is allowed, subject to payment of costs of ₹ 10,000/- by the petitioner out of which ₹ 5,000/- shall be paid to the complainant and ₹ 5,000/- shall be deposited with the Delhi High Court Legal Services Committee within a period of two weeks from the passing of the order - application allowed.
Issues:
Petition against order of Special Judge, Tis Hazari Courts; Dismissal on ground of limitation and merits; Opportunity to file application under Section 145(2) N.I. Act; Abolishment of trial court and transfer to another Metropolitan Magistrate; Closure of right to cross-examine complainant's witness; Recall of NBWs; Application under Section 145(2) N.I. Act declined; Prayer for one opportunity to cross-examine; Interpretation of Section 145(2) N.I. Act; Supreme Court judgments in Mandvi Cooperative Bank Limited and Indian Bank Association; Setting aside impugned order; Costs imposed on petitioner; Granting opportunity to cross-examine complainant. Analysis: The petition was filed against the order of the Special Judge, Tis Hazari Courts, which dismissed the revision petition on the grounds of limitation and merits. The petitioner, involved in a proceeding under Section 138 of the Negotiable Instruments Act, claimed trial defense stating that the cheques were security cheques not returned. The petitioner sought to file an application under Section 145(2) N.I. Act, with the trial court granting opportunities but later closing the right to cross-examine the complainant's witness due to procedural issues arising from court transfers and strike calls. The petitioner, unaware of the court transfer, faced challenges in complying with procedural requirements. The court referred to Supreme Court judgments in Mandvi Cooperative Bank Limited and Indian Bank Association, emphasizing the mandatory nature of summoning witnesses under Section 145(2) N.I. Act. The court noted that the trial court should have allowed the petitioner's application under Section 145(2) N.I. Act based on the legal precedents and the case's circumstances. Consequently, the impugned order was set aside, and the petition was allowed, subject to the petitioner paying costs. The petitioner was granted the opportunity to cross-examine the complainant or any other witness, with a directive to complete the process efficiently. The petitioner's application under Section 145(2) N.I. Act was allowed, ensuring a fair chance for cross-examination. The court emphasized the need for timely and efficient handling of cases under Section 138 of the Negotiable Instruments Act, in line with the directives provided by the Supreme Court in Indian Bank Association. In conclusion, the court disposed of the petition, instructing the trial court to adhere to the directives and ensure proper communication of the order. The judgment highlighted the importance of following procedural requirements diligently to facilitate the expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act.
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