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2024 (8) TMI 81 - HC - Indian LawsDishonour of Cheque - no order passed for conversion of present complaint into summons triable matter - Application of Section 145(2) of the Negotiable Instruments Act, 1881 - Violation of principles of natural justice - no sufficient time was granted to the petitioner in the present matter and an application for recall of the order is rejected. HELD THAT - Admittedly proceedings under Section 138 of the Act are required to be conducted as summary procedure unless the Magistrate comes to the conclusion that there is need to convert it into summons triable matter. There is no such order passed by the learned Magistrate in the present complaint to convert it into summons triable matter. The evidence of the complainant is given on affidavit supported with bank slip and the material regarding dishonour of the cheque, it is unnecessary for the Magistrate to record any further preliminary evidence of the complainant. Such an affidavit in evidence though produced at the time of verification can be read as evidence at all stages of the trial and other proceedings. Manner of the examination of the person giving affidavit is as per Section 264 of Cr.P.C. Since the scheme is to follow summary procedure, Section 264 of Cr.P.C., provides judgment to be passed when the accused pleads not guilty unless an application is filed for recall of the witnesses as provided under Section 145 (2) of the Act. These provisions are required to be read in tandem. In Expeditious Trial of Cases under Section 138 of the N. I. Act, 1881 2021 (4) TMI 702 - SUPREME COURT , the Constitutional Bench of the Apex Court discussed the power of Magistrate to try summary and procedure adopted by the Magistrate to convert summary trial into summons triable mechanically, considered in detail provisions and the mandate of Section 143 of the Act. The main issue in that proceeding was the power of the Court under Section 258 of Cr.P.C. to stop the proceedings and in that context observations in the case of Meters and Instruments Private Limited 2017 (10) TMI 218 - SUPREME COURT were considered as inappropriate. However, specific directions were issued to the High Court to issue practice directions to the trial Court to treat service of summons in one complaint confirming part of the transactions as deem service in respect of all complaints filed before the same Court relating to dishonour of the cheque issued in part and the same transaction. It is clear that there is no need for the complainant to further depose what he has stated in affidavit in evidence at the time of verification of the complaint and that such affidavit in evidence could be considered as examination in chief of the complainant and his witnesses - As quoted in the case of Meters and Instruments Private Ltd, evidence of the complainant could be given on affidavit subject to Court summoning such complainant and his witnesses for examination, it is not necessary for the Magistrate to record further preliminary evidence. Such an affidavit could be read in evidence at all stages of the trial. It is no doubt true that the accused is having a valuable right to summon the complainant and his witness, however, has to disclose probable grounds on which recall of such witness is required. Once such probable grounds are disclosed in the application, a Court is duty bound to summon the complainant and his witness, who have already deposed on affidavit. It is no doubt true that the accused is having a valuable right to summon the complainant and his witness, however, has to disclose probable grounds on which recall of such witness is required. Once such probable grounds are disclosed in the application, a Court is duty bound to summon the complainant and his witness, who have already deposed on affidavit. Petitioners failed to apply before the Court under Section 145 (2) of the Act disclosing their probable defence for the purpose of recalling the complainant. Thus, there is no ground even to recall the order of closing of cross examination as no purpose would be served since there is no application disclosing probable grounds for the purpose of cross examination of the complainant - no fault could be attributed to the order passed by the learned trial Court and much less any illegality or perversity so as to interfere in the supervisory and extra ordinary jurisdiction of this Court. Petition dismissed.
Issues Involved:
1. Legality of the Magistrate's order dated 14.8.2023. 2. Denial of fair trial and opportunity to the petitioners. 3. Requirement of filing an application under Section 145(2) of the Negotiable Instruments Act. 4. Conduct of summary trials under Section 138 of the Negotiable Instruments Act. 5. Applicability and interpretation of Section 143 and Section 145 of the Negotiable Instruments Act. Issue-wise Detailed Analysis: 1. Legality of the Magistrate's Order Dated 14.8.2023: The petition challenges the Magistrate's order dated 14.8.2023, which closed the cross-examination of the complainant due to the petitioners' failure to file an application under Section 145(2) of the Negotiable Instruments Act. The petitioners argued that the order is perverse and violates principles of natural justice as no sufficient time was granted to them. They also contended that their application for recall of the order was unjustly rejected. 2. Denial of Fair Trial and Opportunity to the Petitioners: The petitioners claimed that the Magistrate's action in closing the cross-examination was arbitrary and amounted to a denial of a fair opportunity, which is against the settled principles of criminal jurisprudence. They argued that the Magistrate hurriedly decided the matter without granting them a reasonable opportunity to present their defense, which should have included the chance to file an application under Section 145(2) for cross-examination. 3. Requirement of Filing an Application under Section 145(2) of the Negotiable Instruments Act: The petitioners failed to file an application under Section 145(2) of the Act, which is necessary for summoning and examining any person giving evidence on affidavit. The court emphasized that the accused must disclose probable grounds for recalling such witnesses. The petitioners did not file such an application, and therefore, the Magistrate's decision to close the cross-examination was upheld. 4. Conduct of Summary Trials under Section 138 of the Negotiable Instruments Act: The court reiterated that proceedings under Section 138 of the Act should be conducted summarily, as mandated by Section 143 of the Act. The trial should be continued from day to day until its conclusion unless adjournment is necessary for reasons recorded in writing. The court referred to several precedents, including the case of Indian Bank Association and others vs. Union of India and others, which provided guidelines for the conduct of such trials. 5. Applicability and Interpretation of Section 143 and Section 145 of the Negotiable Instruments Act: Section 143 allows for summary trials of offences under the Act, and Section 145 permits evidence to be given on affidavit. The court explained that the affidavit evidence can be read at all stages of the trial, and the complainant need not step into the witness box again. The court cited the case of Meters and Instruments Private Limited vs. Kanchan Mehta, which clarified that the trial under Chapter XVII of the Act is expected to be summary, and the accused must file an application under Section 145(2) if they wish to cross-examine the complainant. Conclusion: The court dismissed the petition, stating that the petitioners failed to file an application under Section 145(2) of the Act and did not disclose probable grounds for recalling the complainant. The Magistrate's order was found to be in accordance with the law, and no illegality or perversity was attributed to it. The petitioners' claim of denial of fair trial and opportunity was rejected, and the petition was disposed of with no order as to costs.
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