2023 (8) TMI 1497 - HC - Indian Laws

Dishonor of cheque - right to trial - cross-examination of witnesses - recall of complainant u/s 145(2) of NI Act for cross examination - violation of principles of natural justice - HELD THAT - From the documents on record it appears that examination in chief of the complainant was recorded on 29.9.2022. On completing the examination in chief, the learned trial Judge recorded that the accused did not make any application to cross examine the complainant. Even otherwise accused is not prepared to cross examine the complainant on the ground that his advocate is busy before another Court. Section 309 of Cr.P.C. provides that the fact that pleader of the party is before another Court cannot be a ground for adjournment. Hence, cross of the accused is closed. The statement was explained to the accused and the case was kept for defence evidence. Advocate also could not remain present on account of miscommunication about the date of hearing. In the application under Section 145(2) of the Act, it was stated that the case has been filed by the complainant fraudulently by misusing cheques. The accused has paid the amount as claimed by complainant. Learned Magistrate vide order dated 7.2.2023 allowed the applications. The Court had observed that the accused was not aware about the filing of an application for cross examination on the date of completion of examination in chief of PW1. Advocate was not present. Admittedly no such application for cross examination was filed on the date when examination in chief was over. However, it cannot be ignored that at the relevant time accused was not represented by advocate. Evidence recorded in examination in chief has to be tested by granting opportunity to the accused through cross examination. Although the impugned order does not deal in detail about application under Section 145(2) of the NI Act, from the grounds urged in the application, the respondent cannot be deprived of cross examination of complainant. In the case of Rakesh Singh Vs. Anil Madanmohan Gulati 2023 (5) TMI 645 - BOMBAY HIGH COURT this Court again reiterated principles to underline Section 145(2) of the NI Act and observed that accused has right to fair trial. Once it is recognized that accused had absolute and unqualified right to have the complainant and any or all his witnesses summoned for cross examination, accused cannot be deprived of such right unless there is extra ordinary reason for doing so. Considering the factual aspect of the present case, no interference is called for in the impugned order passed by the learned Magistrate and devoid of merits - petition dismissed.

Summary

Issues:
1. Challenge to orders allowing cross-examination of PW1 in Criminal Cases.
2. Interpretation of Section 145(2) of the Negotiable Instruments Act.
3. Application of settled laws in passing orders.
4. Timing of filing applications for cross-examination.
5. Requirement of specifying defense for cross-examination.
6. Right of accused to fair trial and cross-examination.

Analysis:

1. The petitioner challenged orders allowing cross-examination of PW1 in Criminal Cases related to dishonored cheques issued after a consent decree. The accused had failed to pay the agreed amounts, leading to the complaints under Section 138 of the Negotiable Instruments Act.

2. The petitioner argued that the impugned orders were contrary to the scope of Section 145(2) of the NI Act. The accused's failure to specify a defense and the belated filing of applications for cross-examination were highlighted as reasons to deny the right to cross-examine.

3. The petitioner contended that the trial court did not apply settled laws and failed to consider the petitioner's replies. It was emphasized that the accused's lack of defense and failure to respond to the demand notice should preclude cross-examination.

4. The timing of filing applications for cross-examination was questioned by the petitioner, stating that they were made at a belated stage when the matter was set for defense evidence, which could be seen as an attempt to delay the proceedings.

5. The requirement for the accused to specify their defense for cross-examination under Section 145(2) of the NI Act was stressed by the petitioner. It was argued that without a clear defense, the accused should not be allowed to cross-examine the complainant.

6. The respondent argued that the accused must be permitted to cross-examine the complainant to ensure a fair trial. The respondent relied on the consent decree terms and previous court decisions to support the right of the accused to cross-examine.

7. The judgment highlighted that the accused's advocate's absence due to other court commitments did not justify an adjournment for cross-examination. The court observed that the accused's right to cross-examine should not be denied on flimsy grounds.

8. The court referred to previous decisions emphasizing the accused's right to a fair trial and the necessity of allowing cross-examination unless there are extraordinary reasons to deny it. The court rejected the writ petitions, affirming the orders allowing cross-examination of PW1 in the criminal cases.