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TMI Blog2023 (5) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn by the petitioner in favour of the respondent no. 1 were dishonoured vide bank return memo for the reason insufficient funds . According to the respondent no. 1, the liability of repayment of loan amount was Rs. 19 lakhs which the respondent no. 1 advanced to the petitioner. The summons was served on the petitioner on 04/01/2022. The petitioner pleaded not guilty on 05/04/2022. The applications were made by the petitioner on 21/06/2022 for permitting him to cross examine the respondent no. 1 under section 145(2) of the NI Act at Exhibit D-33. The petitioner set up a defence that there is no legally enforceable debt as claimed by the respondent no. 1. Further, the petitioner denied having any loan transaction with the complainant. The petitioner stated that he did not receive any notice as contemplated under NI Act. 4. The respondent no. 1 filed reply at Exhibit D-35. The 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. It is stated that the petitioner did not avail of his opportunity for defence at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting that the statement in Meters and Instruments Private Limited and Ors vs Kanchan Mehta, is not obiter dicta, and the said judgment calls upon the accused to disclose and defence, it is humbly stated that in the present case, the Petitioner had moved an application for cross examination, which clearly spells out two defences, one that there existed no loan transaction between the Petitioner and the Respondent and secondly that the Statutory Notice allegedly sent on the email of the Petitioner was never received by him. [Reference : Annexure C, Pg. 65] 8. It bears mentioning that the Respondent has not produced a single document in support of their claim of a loan transaction between himself and the Petitioner. 9. Therefore, even in terms of Meters and Instruments Private Limited and Ors vs Kanchan Mehta , the Petitioner has complied with the requirements, by disclosing his defence in his application under section 145(2) and the Ld. Magistrate thus acted beyond his jurisdiction by entering into the merits of the defence set out and rejecting the application. 6. Learned counsel for respondent no. 1 has apart from oral submissions, tendered written submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons. 9. Our Hon ble High Court in the case of Rukmakar @ Bharat Tulshidas Naik Vs. Santosh Shaba Gaonkar Anr. (Criminal Writ Petition No.35 of 2019) dated 05.04.2019 has made a reference to the judgments of the Hon ble Supreme Court in the case of Indian Bank Association Ors. Vs. Union of India Ors., 2014 (5) SCC 590, and Meters and Instruments Private Limited Anr. Vs. Kanchan Mehta, 2018 (1) SCC (Cri) 477. 10. In Indian Bank Association (supra) directions were issued that, after appearance of the accused, the Magistrate should ask him to take notice under Section 251 of Cr.P.C. in order to enable the accused to enter his plea of defence and thereafter fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for reading a witness for cross-examination. 11. In the case of Meters and Instruments Private Limited (supra), the Hon ble Supreme Court has held that, if the accused wants to contest the case, he must be required to disclose specific defence for such contest and for this purpose, it is open to the Court to ask specific questions to the accused at that stage. 12. Therefore, considering the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003, the date on which those provisions were inserted in the Act? [Appeal arising from SLP (Crl.) No.4760 of 2006.] 3. Whether the right to give evidence on affidavit as provided to the complainant under Section 145(1) of the Act is also available to the accused? [Appeal arising from SLP (Crl.) No.3915 of 2006.] 10. Their Lordships examined the relevant legal provisions and ascertained the object and reasons for which those provisions were brought into existence by making amendment in the NI Act. Relevant in the context of the present case are paragraphs 20 to 25 which are as under : 20. It may be noted that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of Section 146 similarly depart from the principles of the Evidence Act. Section 143 makes it possible for the complaints under Section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. Here we must take notice of the fact that cases under Section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta. 32. Mr. Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106 of 2007 also joined Mr. Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be departed from, particularly when the words of the statute are clear and unambiguous. He relied upon the decision in Raghunath Rai Bareja v. Punjab National Bank. 33. We are completely unable to appreciate the submission. The plea for a literal interpretation of Section 145(2) is based on the unfounded assumption that the language of the section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145(2) to suggest that. We may also make it clear that Section 137 of the Evidence Act does not define examine to mean and include the three kinds of examination of a witness; it simply defines examination-in-chief , cross-examination and re-examination . What Section 145(2) of the Act says is simply this. The court may, at its discretion, call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself 10 of 19 with regard to the contents thereof once over again. He may be cross- examined and upon completion of his evidence, he may be re- examined. Thus, the words examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of sub-section (2) of Section 145 of the Act , in our opinion, would mean for the purpose of cross- examination. The provision seeks to attend a salutary purpose. 16. Considerable time is usually spent for recording the statement of the complainant. The question is whether the Court can dispense with the appearance of the complainant, instead, to take steps to accept the affidavit of the complainant and treat the same as examination-in-chief. Section 145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The Court has to accept the same even if it is given by way of an affidavit. Second part of Section 145(1) provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination. 23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses, instead of examining them in the court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the court. 14. In Meters and Instruments Private Limited and anr. Vs. Kanchan Mehta (2018) 1 Supreme Court Cases 560, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n close the proceedings and discharge the accused. 18.4 Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. 18.5. Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank s slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context of compounding or when the Court directs deposit of specified amount. It is not possible for me to accept this submission of learned counsel for the petitioner. Their Lordships in clear terms have held that the accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is further held that it is open for the Court to ask specific questions to the accused at that stage. 18. In my opinion, the Supreme Court in Meter and Instruments Private Limited and anr. (supra) has not at all diluted the proposition laid down in Mandvi Cooperative Bank Limited (supra) that the accused, however, is fully protected and under sub-section (2) of section 145 of the NI Act, he has absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross examination . The Supreme Court has not curtailed the right of the accused to have the complainant summoned for cross examination. The need to disclose specific defence for such contest is to discourage the accused from prolonging the trial unnecessarily. It is only to ensure that the accused does not contest the case on a sham defence or absent any defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended provisions of NI Act viz. Sections 143 to 147 which must have given effect to in letter and spirit. The offence under section 138 of the NI Act is primarily a civil wrong. The burden of proof is on the accused in view of the presumption under section 139 and the standard of such proof is preponderance of probabilities . 21. In view of the observations of the Supreme Court in the case of Mandvi Cooperative Bank Limited (supra), since the accused is fully protected under sub-section 2 of section 145 and has absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross- examination, it is not necessary for the trial Court to delve deep into the merits of the defence which is set up by the accused. The order of the trial Court on an application under section 145(2) cannot in any manner have the effect of defeating the absolute and unqualified right of the accused to cross examine the complainant. 22. For guidance, a profitable reference needs to be made to the decision of the Supreme Court in Re: Expeditious Trial of Cases under Section 138 of N.I. Act, 1881 in Suo Motu Writ Petition (CRL.) No. 2 of 2020 dated 16/04/2021. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee. 23. It is thus seen that in paragraph 7, Their Lordships have observed that section 258 of the Code is not applicable to the complaints under section 138 of the Act and the findings to the contrary in Meters and Instruments Private Limited and anr. (supra) do not lay down correct law. The decision in Meters and Instruments Private Limited otherwise holds the field. 24. In compliance of the order of the Hon ble Supreme Court of India dated 16/04/2021 passed in Suo Motu Writ Petition (CRL.) No. 2 of 2020, the Hon ble Chief Justice of the High Court of Bombay issued the following practice directions by a Circular dated 27/01/2022 reading thus : 1. The magistrates having jurisdiction to try offences under the Negotiable Instruments A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above directions be insured. These practice directions in terms of the order passed by the Hon ble Supreme Court are in force. 25. In the present case, the accused denied the case set up by the respondent no. 1 in the application filed by him under section 145(2) of the NI Act below Exhibit D-33. In paragraphs 2 3, the petitioner stated thus: 2. The accused submits that neither is there any loan transaction as claimed by the complainant nor there exist any legally enforceable debt as claimed by the complainant. The accused further states that no notice as contemplated under the NI Act was even received by the accused. 3. The accused states that in order to substantiate his above stated defence the accused wishes to cross-examine the complainant in relation to the contents of the affidavit filed. 26. The trial Court, in my opinion, 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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