In proceedings under the Negotiable Instruments Act, the accused cannot provide evidence via affidavit and must request in writing to testify, adhering to strict procedural compliance.

JUDGMENT :

VALMIKI MENEZES, J.

1. Registry to waive office objections and register the matters.

2. Rule. Rule made returnable forthwith. With the consent of the parties, petitions are disposed of finally.

3. These two petitions impugn orders dated 06.12.2024 respectively, passed in Criminal Case Nos.OA/30/2020 and OA/925/2019 by the J.M.F.C., A-Court, Ponda. By the impugned orders, the J.M.F.C. has dismissed an application filed by the Petitioner, the original Accused in these proceedings, under Section 138 of the Negotiable Instruments Act and refused leave to the Accused to lead his evidence. The Respondent is the Complainant in both these complaints under Section 138 of the Negotiable Instruments Act. Criminal Case No. OA/30/2020 pertains to a cheque dated 17.10.2019 for an amount of Rs.5,00,000/- whilst Criminal Case No. OA/925/2019 pertains to a cheque dated 30.09.2019 for an amount of Rs.20,00,000/-. Both these cheques have been signed and executed by the Accused/Petitioner herein in favour of the Complainant/Respondent.

4. In both complaints, after the cheques were dishonoured, notices were issued to the Accused calling upon the Accused to pay the amounts under the cheque; Accused has not replied to these notices, pursuant to which the complaints came to be filed before the Magistrate. Unfortunately, instead of the Magistrate proceeding with these cheque bounce cases, by filing a summary procedure provided under Section 260 of Cr.P.C., the Magistrate recorded the Plea of the Accused, who pleaded to be tried. Thereafter, the verification of the complaint on affidavit was treated as the Complainant’s evidence and the Accused filed an application under Sub-Section 2 of Section 145 of the Negotiable Instruments Act seeking leave to cross examine the Complainant.

5. Perusing of the application would reveal that there is no reason cited in the application to justify the grant of leave for cross- examination. The only reason stated in the application is that the matter is a commercial dispute. Contrary to the various Judgments of the Supreme Court and of this Court, which require proper reasons to be stated in such an application, to justify leave to cross examine the Complainant, the Magistrate, accepting the reasons cited by the Accused, that the matter pertains to commercial dispute, granted leave to cross examine by order dated 26.02.2024, in both cases.

6. In the examination-in-chief of the Complainant, the Complainant relied upon a “Agreement of Payment” dated 18.09.2019, execution of which was not denied by the Accused. It was on the basis of this agreement, according to the Complainant, that the cheques in question were executed in favour of the Complainant, which have been dishonoured.

7. Going through the cross-examination of the Complainant, there is no denial of the execution of this agreement. The Complainant has also not been cross examined, nor has the Complainant been cross examined as to the contents of the agreement. In the cross examination, the only suggestion that has been put to the Complainant is that the cheques were issued to facilitate a business deal and not for repayment of a friendly loan. Even in the cross examination, there is absolutely no defence raised, nor is the transaction contained in the agreement denied. There is not even a suggestion as to what other contract or understanding