ORDER :

1. The petitioner is before this court seeking for setting aside the order dated 02.01.2020 passed in C.C.No.477/2019 by the Senior Civil Judge and JMFC, Nagamangala.

2. By way of the said order dated 02.01.2020, the Senior Civil Judge, Nagamangala observing that the petitioner herein who is accused therein had not complied with the order passed on 28.10.2019 directing the petitioner to deposit a sum equivalent to 20% of the cheque amount within a period of 60 days, rejected the application filed by the petitioner under Section 145(2) of the Negotiable Instruments Act (Hereinafter referred to as NI Act) seeking permission to cross examine the complainant therein as also recording the statement that the complainant had no further evidence on the ground that the petitioner had failed to cross examine PW-1 recordal of the statement under Section 313 was dispensed with on account of failure to comply with the provisions of Section 143A of the Negotiable Instruments Act, defendants evidence was taken as `Nil’ and posted for arguments on 07.01.2020.

3. Sri.Bhargava D. Bhat, learned counsel for petitioner would submit that

3.1 in terms of Section 143A of NI Act if an order is passed directing the accused to deposit any interim compensation within a period of 60 days from the date of the order,

3.2 the same could be with further leave of the court be extended by a period of 30 days

3.3 in the event of the same not being paid that amount has to be recovered in terms of Section 421 of Code of Criminal Procedure, 1973 as per Section 143A(5) by issuance of a Fine Levy Warrant (FLW).

3.4 On this ground he submits that the Magistrate could not have on the basis of non deposit of the amount proceed to deny the petitioner an opportunity to cross examine PW-1, to lead his evidence etc., as done.

3.5 The recovery of interim compensation is a separate proceeding it was open for the complainant to initiate proceedings under Section 421 of Cr.P.C.

3.6 He relies on the decision of the Hon’ble Apex Court in Mandvi Cooperative Bank Limited Vs Nimesh B.Thakore reported in 2010(3) SCC 83 more particularly paragraph 33 thereof which is reproduced here under:

“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 “reexamination”. What Section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein.

What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in the light of the provision of Section 145(1) and having regard to the object and purpose of the entire scheme of Sections 143 to 146. The scheme of Sections 143 to 146 does not in any way affect the Judge’s powers under Section 165 of the Evidence Act.”

3.7 He submits that once an application is filed by accused under Section 145(2) of the N I Act, Magistrate had no discretion but to allow the application to cross examine PW-1.

3.8 Magistrate could not have referred to noncompliance of the order passed under Section 143A of the Act to deny the accused the right to cross examine and as such he submits that the order is required to be quashed on both the above grounds.

4.