IMPORTANT POINT
[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 intended to ensure a fair trial.]

JUDGMENT/ORDER

1. Rule. Rule made returnable forthwith.

2. Heard the parties with consent for final disposal at the admission stage.

3. In the present Petition filed under Sec. 482 of Cr.P.C and Articles 226 and 227 of the Constitution of India, the Petitioner who is an Accused, in a matter pending before the learned Magistrate for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (N.I. Act, for short), is challenging the rejection of his Application filed under Sec. 145(2) of the N.I. Act by the learned Magistrate.

4. Heard Mr. Vibhav Amonkar for the Petitioner and Mr. Vithal Naik for the Respondent.

5. Mr. Amonkar would submit that the impugned order shows non-application of mind and denial of an opportunity to crossexamine the Complainant by disclosing specific defence in the Application. He submits that the learned Magistrate committed a jurisdictional error, thereby denying the valuable right of the Petitioner to cross-examine the Complainant and misconstrued the law laid down by the Apex Court as well as by this Court. Accordingly, he submits that the Application disclosing the grounds of defence need not elaborate on each and every ground for defence.

He submits that the procedure requires the Accused to disclose the grounds of his defence which the Petitioner has disclosed. He submits that however, without considering the mandate that once such Application is filed, disclosing specific defence, the Magistrate shall grant such Application by summoning the Complainant, show that impugn order needs interference.

6. Mr. Amonkar placed reliance on the following decisions:

(i) Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore, (2010) 3 SCC 83;

(ii) Meters and Instruments Pvt. Ltd. Vs. Kanchan Mehta, AIR 2017 SC 4594;

(iii) Rakesh Singh Vs. Anil Madanmohan Gulati, (Criminal Writ Petition No.35 of 2023 decided on 9/5/2023);

(iv) Jose Carmo Medard Fernandes Vs. Babu Sheikh (Criminal Writ Petition No.31 of 2023 decided on 28/8/2023);

(v) Shantal Kamat Vs. Milind Ladu Kerkar, (Criminal Writ Petition No.227 of 2023 (F) decided on 11/10/2023);

(vi) K. Narsimulu Vs. Naguesh C. Dandi, (Criminal Writ Petition No.634 of 2023 (F) decided on 18/10/2023) and

(vii) Gautami Govind Naik Vs. Bori Urban Cooperative Credit Society, (Criminal Writ Petition No.676 of 2023 (F) decided on 6/11/2023).

7. Mr. Naik appearing for the Respondent would submit that the Application filed by the Accused for permission to cross-examine the Complainant must set out the specific defence and not only the moonshine defence. It is submitted that the Accused has to satisfy the Court that it is a probable defence. He submits that the Application filed by the Petitioner is vague and is only an attempt to bye-pass and prolong the procedure. He submits that the learned Magistrate has rightly rejected the Application as so-called grounds, on which, the Petitioner is claiming or raising defence are only phrases, which are normally used while arguing the matter.

8. Mr. Naik placed reliance on the following decisions:

(i) Rukmakar @ Bharat Tulshidas Naik Vs. Santosh Shaba Gaonkar, (Criminal Writ Petition No.35 of 2019 (F) decided on 5/4/2019);

(ii) Paresh Bandekar V/s Rajaram D. Satardekar and Anr., (Criminal Writ Petition No.24 of 2020 decided on 24/2/2021);

(iii) Apolonius Francisco Luis Vs. Sahajanand Investments Pvt. Ltd. (Criminal Writ Petition No.838 of 2021 (F) decided on 12/9/2022) and

(iv) Payal Malhotra Vs. Sulekh Chand, (Criminal Writ Petition No.1366 of 2023 decided on 29/11/2023 passed by Hon 'ble High Court of Delhi at New Delhi).

9. The rival contentions fall for consideration:

10. The Petitioner is an Accused in a complaint filed under Sec. 138 of the N.I. Act by the Respondent-Finance Company, in which, the Magistrate has issued a summons on satisfaction that a case is made out for summary trial. The Accused appeared before the learned Magistrate and after explaining the substance of accusation as provided under Sec. 251 of Cr.P.