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IN THE HIGH COURT OF BOMBAY
Prakash D. Naik, J.
Shantal Kamat - Appellant
Versus
Milind Ladu Kerkar - Respondent
Criminal Writ Petition No. 227 of 2023 (F)
Decided On : 11-10-2023
N.I. Act - Negotiable Instruments Act, 1881 - Sections 138, 145(2) - The court discussed the provisions of Sections 138 and 145(2) of the Negotiable Instruments Act, emphasizing the right of the accused to cross-examine the complainant. The court interpreted Section 145(2) as granting an absolute right to the accused to cross-examine the complainant, which is essential for ensuring a fair trial. The court concluded that the learned Magistrate's order allowing the cross-examination was justified and necessary for the proceedings.
Fact of the Case:
The Petitioner, the original Complainant, filed a complaint under Section 138 of the Negotiable Instruments Act after a cheque issued by the accused was dishonoured. The accused, who was a Business Manager at a company, had promised high returns to the Complainant for investments in gold but failed to make payments, leading to the issuance of the cheque. The accused sought to cross-examine the Complainant under Section 145(2) of the N.I. Act, which was allowed by the Magistrate.
Finding of the Court:
The court found that the learned Magistrate's order allowing the cross-examination was appropriate. It noted that the accused had a right to cross-examine the Complainant to ensure the truth was revealed, and the proceedings had been delayed due to the Complainant's absence.
Issues: Whether the accused has the right to cross-examine the Complainant under Section 145(2) of the N.I. Act, and whether the learned Magistrate's order allowing this cross-examination was justified.
Ratio Decidendi: The court held that the right to cross-examine the Complainant under Section 145(2) of the N.I. Act is absolute and unqualified. The court emphasized that the accused must be allowed to present their defense and that the proceedings should not be unduly delayed due to the Complainant's absence.
Final Decision: The court dismissed the Criminal Writ Petition, upheld the Magistrate's order allowing cross-examination, and directed the Complainant to make herself available for cross-examination.
JUDGMENT/ORDER
1. The Petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India challenging Order dtd. 17/10/2022 passed by learned Judicial Magistrate First Class, Panaji, Goa, allowing the application preferred by the Respondent under Sec. 145(2) of the Negotiable Instruments Act, 1881 ('N. I. Act', for short).
2. The Petitioner is the original Complainant. The complaint was filed for an offence under Sec. 138 of the Negotiable Instruments Act. It was registered as OA/247/2021/E. The grievance of the Complainant is that the accused was working for the Company M/s. Chrome Business & Trade (I) Pvt. Ltd. The accused was designated as Business Manager. The Company was dealing in the business of offering various schemes wherein the customers can invest in gold with promises of high returns on the investments and the customer was allotted unique Customer Code. The accused appointed the Complainant as authorized agent on behalf of Company and messaged an Agent Code to the Complainant. The accused promised that the Complainant would receive high commissions which would be commensurate to the number of new customers acquired by her. The Company brought several new customers who invested heavily in purchasing gold. The accused subsequently represented that he is focusing on re-investment and the business was down due to pandemic Covid-19 and the accused told the Complainant to encourage existing customers to renew the policies which had crossed maturity date and promised that it would double their profits which would be beneficial to the Complainant. The accused delayed the payment towards customers whose policies had crossed the maturity dates and such customers started complaining to the Company for their payments. The Complainant demanded the amount. The accused made written commitment to pay the amount of Rs.47, 26, 850.00 in instalments. The accused issued a cheque bearing no. 410220 dtd. 26/7/2021 for an amount of Rs.47, 26, 850.00. The Complainant deposited the cheque which was dishonoured. Legal notice dtd. 18/8/2021 was sent to the accused. It was replied by the accused. The accused failed to make the payment. Complaint was filed for an offence under Sec. 138 of the N.I. Act on 13/9/2021.
3. The Complainant tendered affidavit of evidence. The accused preferred an application under Sec. 145(2) of the N. I. Act seeking permission to cross examine the Complainant. The application was opposed by the Complainant by filing reply. The learned Magistrate allowed the said application vide Order dtd. 17/10/2022.
4. Learned Advocate for the Petitioner submitted that the order passed by the learned Magistrate is contrary to law. The application preferred by the Respondent was cryptic. There was no specific defence. The accused did not provide reasons on what point he intends to cross examine the Complainant. The accused had delayed the proceedings. He did not appear before the Trial Court for long time. The accused did not reply the notice.
5. Learned Advocate for the Petitioner has relied upon the following decisions :
(ii) Meters and Instruments Private Limited and anr. vs. Kanchan Mehta, (2018) 1 SCC 560.
(iii) Rukmakar @ Bharat Tulshidas Naik vs. Santosh Shaba Gaonkar and anr., WPCR No. 35 of 2019 of this Court decided on 5/4/2019.
(iv) Paresh Bandekar vs. Rajaram Satardekar and anr., WPCR No. 24 of 2020 of this Court decided on 24/2/2021.
(v) Apolonius Francisco Luis vs. Sahajanand Investments Pvt. Ltd.,.
6. Learned Advocate for the Respondent submitted that there is no infirmity in the impugned Order. The accused cannot be deprived of right to cross-examine. The Respondent had preferred an application under Sec. 145(2) of the N. I. Act and contended that the case is false. The accused be allowed to cross-examine the Complainant so that the truth will come out. In the interest of justice, the accused be allowed to cros
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 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 ....
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.
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.
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 court emphasized the need to enforce financial discipline in business activities through the summary proceeding of Section 138 of the NI Act, and the importance of balancing the rights of the acc....
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