IMPORTANT POINT
Accused must be accorded full opportunity to defend himself.

M.L. Mehta, J.— Present petitions have been filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. against impugned order dated 27.7.2011 passed by learned ASJ in Cri. Revision No. 66/2011 and order dated 7.2.2011 of the learned MM in Complaint Case No. 883/A/2010 under Section 138 of Negotiable Instrument Act (hereinafter referred to as “the Act”).

2. In his complaint filed by the respondent Rajendra Prasad Gupta under Section 138 of the Act, it was alleged that the petitioners/accused, who is one of the Directors of M/s. Sukhdata Chits Pvt. Ltd., having its registered office at D14/140, Sector-8, Rohini, Delhi-110 085, had issued a cheque of Rs. 50,000 in favour of the respondent towards discharge of its liability, which cheque got dishonoured on presentation with remarks “funds insufficient.”

3. It is averred by the respondent/complainant that petitioners were informed about the fate of the cheque and requested to honour it, but they refused to do so. Consequently, legal notice dated 28.1.2010 was sent to the petitioners through registered AD post which was duly served on them. However, inspite of the service of the legal notice upon the petitioners, they did not make any payment to the respondent/complainant. Thereupon, a complaint was filed by the respondent in the Court of learned MM and summons were served upon the petitioners. Complainant adduced his evidence by way of affidavit.

4. An application was filed by the accused/petitioners under Section 145(2) of the N.I. Act for cross examination of the respondent which came to be disposed by MM vide order dated 7.2.2011. The learned MM permitted cross-examination of the complainant confined to Para 4 & 6 of the application and held that the rest of the paras of the application were legal or within the personal knowledge of the accused/petitioners under section 106 of Indian Evidence Act and hence do not require any cross examination. The said order was challenged by the petitioners in revision in the court of learned ASJ, who upheld the order of the M.M. The above mentioned orders of the MM and the learned ASJ are challenged by way of the present petitions.

5. I have heard learned counsel for the petitioners and the respondent.

6. The only legal issue that arises for consideration is as to whether the petitioners/ accused were not entitled to cross examine the complainant as regard to the entire facts contained in the affidavit of evidence of the complainant or their (petitioners.) right of such a cross examination of the witness of the affidavit was limited to certain facts or their defences. The submission of the learned counsel for the petitioners was that the learned MM as also the learned Revision Court erred in limiting the right of the petitioners/accused to cross examine the complainant only to the facts stated in Para 4 and 6 of his applications. In other words, the submission was that the petitioners were prejudiced in case they were not allowed to cross examine the complainant as regard to the contents of the affidavit of evidence and were confined to their defences or limited facts. On the other hand, the submission of the learned counsel for the respondent was that the nature of the proceedings under Section 138 being of summary trial, there was certain presumptions, which arise against the petitioners under Section 139 of the Act and so, the right of cross examination of the complainant by the petitioners was confined to his defences or in any case to the limited facts.

7. Before adverting to the submission of the parties, it would be pertinent to consider the ideology behind the provisions provided in the Act in cases of dishonouring of cheque. Section 138 was enacted in public interest. Its objective is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in certain cases while at the same time providing adequate safeguards. to prevent harassment of honest drawers.