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IN THE HIGH COURT OF BOMBAY
M.S. Karnik, J.
Rakesh Singh - Appellant
Versus
Anil Madanmohan Gulati - Respondent
Criminal Writ Petition No. 34 of 2023, Criminal Writ Petition No. 35 of 2023
Decided On : 09-05-2023
CROSS-EXAMINATION - RIGHT OF ACCUSED UNDER NI ACT - Negotiable Instruments Act, 1881, Section 138, Section 145(2) - The court emphasized the mandatory nature of Section 145(2) of the NI Act, which grants the accused an absolute right to cross-examine the complainant. The court interpreted that the requirement for the accused to disclose a specific defense does not negate this right. The court highlighted that the trial court erred in denying the application for cross-examination based on the perceived lack of specificity in the defense, as the accused had sufficiently articulated his defenses regarding the absence of a loan transaction and non-receipt of notice. The decision reinforced the importance of expeditious trials while ensuring the accused's right to a fair trial.
Fact of the Case:
The petitioner challenged the trial court's order rejecting his application under Section 145(2) of the NI Act for cross-examination of the complainant, who alleged that cheques issued by the petitioner were dishonored due to insufficient funds. The petitioner denied the existence of a loan transaction and claimed he did not receive the statutory notice.
Finding of the Court:
The court found that the trial court had erred in dismissing the application for cross-examination. It held that the petitioner had sufficiently disclosed his defenses, and the right to cross-examine under Section 145(2) is absolute and unqualified. The court emphasized that the trial court should not delve into the merits of the defense at this stage.
Issues: Whether the trial court erred in denying the application for cross-examination under Section 145(2) of the NI Act based on the alleged lack of specificity in the defense presented by the accused.
Ratio Decidendi: The court reiterated that Section 145(2) of the NI Act provides an unfettered right to the accused to cross-examine the complainant. The requirement for the accused to disclose a specific defense does not diminish this right. The court emphasized that the trial court must allow cross-examination unless there are extraordinary reasons to deny it.
Final Decision: The writ petitions were allowed, and the trial court's order rejecting the application for cross-examination was set aside.
JUDGMENT/ORDER
1. Since common issues arise in both the writ petitions, by consent, both writ petitions are disposed of by this common order.
2. The challenge in these petitions is to the order dtd. 07/10/2023 passed by the trial Court rejecting the applications under sec. 145(2) of the Negotiable Instruments Act, 1881 (for short "NI Act") made by the petitioner- original accused for cross examination of the respondent no. 1-complainant.
3. Respondent no.1 filed the complaints under sec. 138 of the NI Act on the allegation that the cheques 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.19.00 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 sec. 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 sec. 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 time when legal notice was served upon the petitioner and secondly, when the Court summons of the complaint was served upon the petitioner.
5. Learned counsel for the petitioner apart from oral submissions, has filed written synopsis of arguments as under:
4. It is further stated that the Amendment bringing about the addition of sec. 145 in the Negotiable Instruments Act, is procedural and not substantive and thus cannot take a way a right of cross examination of an accused for want of disclosure of defence.
5. That further, all the judicial pronouncement, discussing and enumerating on the provisions of the Negotiable Instruments Act, have not nor have sought to in any manner curtail the right of cross examination of the accused, but have in fact emphasised the importance of the right to cross-examine, in matters of this nature.
[Reference : Mandvi Co-op Bank Ltd vs Nimesh B. Thakore; Indian Bank Association and Ors vs Union of India and Ors; Meters and Instruments Private Limited and Ors vs Kanchan Mehta]
6. It is humbly submitted on behalf of the Petitioner that an isolated statement in Meters and Instruments Private Limited and Ors vs. Kanchan Mehta is misinterpreted to mean that the Accused is required to carve out a defence in order to exercise his right of cross examination. It is submitted that, Meters and Instruments Private Limited and Ors vs Kanchan Mehta, was essentially dealing with the issue of the powers of the Magistrate to compound matters wherein the Complainant was unwilling to do so, and an isolated statement intended to assist a Magistrate in compounding matters is sought to be utilised in the context of applications under sec. 145(2). That the said statements at para 20 of the judgment when read in context does not in any manner call upon the accused to set out a defence for
The right to cross-examine the complainant under Section 145(2) of the NI Act is absolute and cannot be denied based on the accused's failure to disclose a specific defense; the trial court must allo....
[The judgment establishes that an accused in a Sec. 138 N.I. Act case has an absolute right to cross-examine the complainant if a probable defense is disclosed, reinforcing the procedural safeguards ....
Section 145(2) of Act, clearly reveals that Court on receipt of application of prosecution or accused has no option but to summon and examine any person giving evidence on affidavit as to facts conta....
The right to cross-examine the complainant under Section 145(2) of the Negotiable Instruments Act is an essential component of a fair trial, and the courts must ensure that this right is upheld.
The court held that under Section 145 of the NI Act, the accused must be allowed to cross-examine the complainant before recording their plea of defence, ensuring the fairness of the trial process.
The court reinforced that under the Negotiable Instruments Act, an accused must file a specific application to recall a witness for cross-examination, failing which the trial can proceed without such....
Statement of a witness without affording a right to cross -examine and re-examine as per above provision of law cannot be considered to be complete.
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