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2023 (5) TMI 645 - HC - Indian LawsDishonour of Cheque - right of the accused to cross examine the complainant - section 145(2) of the NI Act - applications under section 145(2) of the NI Act were opposed by the respondent no. 1 on the ground that the petitioner has not set out any specific point of defence and the application is mere denial of the complaint - HELD THAT - The question of considering the special provisions laid down by section 145 of the NI Act for a dishonoured cheque trial and to consider how far certain assertions made by the accused are in accordance with the provisions contained in the two sub-sections of that section came came up for consideration before the Supreme Court in MANDVI CO-OP. BANK LTD. VERSUS NIMESH B. THAKORE 2010 (1) TMI 570 - SUPREME COURT - The Supreme Court held that the evidence on affidavit given by the complainant or his witness under section 145(1) is in the nature of his examination-in-chief and on being summoned by the Court on application made by the accused under section 145(2), is not required to depose again in examination-in-chief before being cross examined as to the facts stated in the affidavit. In M/S. METERS AND INSTRUMENTS PRIVATE LIMITED ANR. VERSUS KANCHAN MEHTA 2017 (10) TMI 218 - SUPREME COURT , the Supreme Court was considering the issue as regards the rejection of the prayer by the High Court for compounding offence under section 138 of NI Act on payment of cheque amount and in the alternative for exemption from personal appearance. When the matter came up for hearing before the Supreme Court, notice was issued to consider the question as to how the proceedings for an offence under section 138 of the Act can be regulated, where the accused is willing to deposit the cheque amount. The question for consideration was Whether in such a case, the proceedings can be closed or exemption granted from personal appearance or any other order can be passed . The accused has right to a fair trial. Once it is recognised that the accused has absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination, the applicant cannot be deprived of such a right unless there are some extraordinary reasons for doing so. In fact, the object of section 145(2) is explained by the Supreme Court in Meters and Instruments Private Limited and anr. The Hon ble Supreme Court in paragraph 9 observed that the object of section 145(2) was simpler and swifter trial procedure. Only requirement is that the evidence must be admissible and relevant. The affidavit of the complainant can be read as evidence . The Supreme Court held that the accused has to disclose specific defence to contest the case. The trial Court, committed error in observing that the petitioner is silent on the specific ground of defence or point on which he wishes to cross examine the complainant. It may be that the petitioner has an opportunity to lead defence evidence and rebut the presumption if any, however, that does not mean that the valuable right of the petitioner to cross examine the complainant which he is entitled to under section 145(2) of the NI Act can be lightly brushed aside. The decision relied upon by learned counsel for the respondent in RUKMAKAR @ BHARAT TULSHIDAS NAIK VERSUS SANTOSH SHABA GAONKAR ANR 2019 (4) TMI 2105 - BOMBAY HIGH COURT is distinguishable on facts as this Court was of the opinion that the application was filed in a casual manner. The petitioner therein had not set out the grounds in the application or during the course of hearing of the application to cross-examine the complainant. It is in those circumstances that the order passed by the trial Court was not interfered with. Petition allowed.
Issues Involved:
1. Challenge to the trial court's order rejecting applications under section 145(2) of the NI Act for cross-examination of the complainant. 2. The extent of the accused's right to cross-examine the complainant under section 145(2) of the NI Act. 3. The requirement for the accused to disclose a specific defense to contest the case. Summary of Judgment: Issue 1: Challenge to the trial court's order rejecting applications under section 145(2) of the NI Act for cross-examination of the complainant. The petitions challenge the trial court's order dated 07/10/2023, which rejected the applications made by the petitioner (original accused) under section 145(2) of the Negotiable Instruments Act, 1881, for cross-examination of the respondent no. 1 (complainant). The trial court dismissed the applications on the grounds that the petitioner did not set out any specific point of defense and merely denied the complaint. Issue 2: The extent of the accused's right to cross-examine the complainant under section 145(2) of the NI Act. The petitioner argued that section 145(2) confers an unfettered right of cross-examination on the accused, stating that the Magistrate "shall" summon and examine any person giving evidence on affidavit. The petitioner contended that this right is mandatory and procedural, not substantive, and cannot be curtailed for lack of defense disclosure. The Supreme Court in Mandvi Co-op Bank Ltd vs Nimesh B. Thakore and other cases emphasized the importance of the right to cross-examine in such matters. Issue 3: The requirement for the accused to disclose a specific defense to contest the case. The respondent no. 1 opposed the applications, citing the Supreme Court's judgment in Indian Bank Association & Ors vs Union of India & Ors and Meters and Instruments Private Limited & Ors vs Kanchan Mehta, which require the accused to disclose a specific defense for contesting the case. The trial court, relying on these judgments, concluded that the petitioner's application was silent on specific grounds for cross-examination and dismissed it accordingly. Court's Analysis: The court examined the relevant legal provisions and Supreme Court judgments, including Mandvi Cooperative Bank Limited vs Nimesh B. Thakore, Indian Bank Association & Ors vs Union of India & Ors, and Meters and Instruments Private Limited & Ors vs Kanchan Mehta. It noted that section 145(2) provides an absolute and unqualified right to the accused to summon and cross-examine the complainant. The court emphasized that the trial court must be satisfied that the specific defense disclosed by the accused is not sham or illusory and that the right to cross-examine cannot be lightly brushed aside. Conclusion: The court found that the trial court erred in dismissing the petitioner's application for cross-examination under section 145(2) of the NI Act. The averments made by the petitioner were sufficient to bring the case within the ambit of "setting up a specific defense." The writ petitions were allowed, and the trial court's order was set aside.
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