Accused must disclose specific defense and seek leave to cross-examine the complainant as per the law laid down by the Supreme Court.

JUDGMENT

M. S. Jawalkar, J. - The matter is taken up for final disposal at the stage of admission. Inspite of the notice respondent no.1 remained absent.

2. By this petition, the petitioner/complainant challenged the order dated 2.11.2018 allowing the accused/respondent no.1 to cross examine the complainant and the order dated 27.11.2019 passed while dismissing the application for recall at Exh17-D passed by JMFC at Panaji in criminal case no.OA/122/2018/B.

3. Facts of the case is that the accused no.1 had approached the complainant for financial assistance to start his land development project. The complainant being his friend agreed to provide him financial assistance by way of friendly loan and accordingly paid different sum on different dates totalling Rs.45 lakhs for a period of four years.

4. They have also executed loan agreement dated 28.11.2017. The accused in discharge of part of the legal liability issued two cheques for Rs.6 lakhs each. As the cheques were dishonoured the complainant issued statutory notice to the accused dated 23.1.2018. Though the accused received the same, he failed to reply and neglected to comply with the statutory notice and to pay the amount. Therefore, the complaint came to be filed under Section 138 of the Negotiable Instruments Act, 1881.

5. After receiving the summons the accused pleaded not guilty and applied for cross examination on 2.11.2018. It is contention of the petitioner that the accused did not disclose his probable defence and application was filed in utmost causal manner. The learned JMFC, without giving an opportunity to the petitioner and without seeking any say of the complainant, allowed the accused to cross examine the complainant. The petitioner filed an application to recall the order. The trial Court by order dated 27.11.2019 dismissed the application on the ground that the Court had no power to recall the order and that the application is filed after a period of six months.

6. The learned counsel for the petitioner relied on unreported judgment of this Court in the case of Rukmakar @ Bharat Tulshidas Naik Vs. Santosh Shaba Gaonkar and anr., Criminal Writ Petition No 35 of 2019 and Meters and Instruments Private Limited and anr. Vs. Kanchan Mehta, (2018) 1 SCC(Cri) 477.

7. The learned Addl. Public Prosecutor appeared for the State/respondent no.2. None present for the respondent no.1.

8. In Rukmakar @ Bharat Tulshidas Naik (supra), this Court observed as under at paragraphs 9 10 and 11:-

"9. I have given my anxious consideration to the rival circumstances and the submissions made. As has been noticed by the learned Magistrate, in normal circumstances, a party is not required to seek leave to cross examine the witness of an adversary. However, the present matter is governed by the law laid down by the Hon'ble Supreme Court in the case of Indian Bank Association & Ors. vs. Union of India & Ors., (2014) 5 SCC 590 which has been reiterated in a recent decision of the Supreme Court in the case of Meters and Instruments Private Limited & anr. vs. Kanchan Mehta, (2018) 1 SCC(Cri) 477.

10. In terms of the directions issued in the case of Indian Bank Association (supra), 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 recalling a witness for cross examination (see para 23.4 of the judgment in the case of Indian Bank Association)."

11. In the case of Meters and Instruments Private Limited (supra), the 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."

9. In the present matter also inspite of notice no reply is filed nor notice was complied by the accused. Thus he was ha