Back
HIMACHAL PRADESH HIGH COURT
Sandeep Sharma, J.
Anu Sharma – Petitioner
versus
Punjab National Bank – Respondent
CrMMO No.216 of 2019
Decided on 7.8.2019
(A) Negotiable Instruments Act, 1881 – Section 145(2) – Cross-examination of complainant by accused – A party making application under Section 145(2), is required to assign reasons for summoning the person who has given evidence by way of affidavit – There is no necessity to recall and re-examine complaint after summoning of accused, unless Magistrate passes a specific order as to why complainant is to be recalled – Such an order is to be passed either on an application made by accused or under Section 145(2) of Act or suo motu by Court – Though there is no necessity to recall and re-examine complainant but Magistrate can pass a specific order to recall complainant – Such an order is to be passed either on an application made by accused or under Section 145(2) of Act or suo motu by Court. – – – – (Paras 7, 13 and 14)
(B) Negotiable Instruments Act, 1881 – Section 145(2) – Criminal Procedure Code, 1973 – Section 482 – Cross-examination of complainant by accused – Application under S.145(2) came to be filed on behalf of accused, seeking therein permission to cross-examine accused with regard to contents contained in affidavit tendered by him in evidence – Application filed by accused came to be dismissed on the ground that accused has not mentioned as to what was legally due from him to Bank or what amount mentioned in cheque was not legally recoverable from him at relevant time – Accused has specifically taken plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant – As such, accused is well within his right to cross-examine complainant and its witnesses – Impugned order set aside and application moved by accused under Section 145(2) allowed.
Held: In the case at hand, application under S.145(2) came to be filed on behalf of the accused, seeking therein permission to cross-examine the accused with regard to contents contained in the affidavit tendered by him in evidence. But, as has been taken note herein above, application filed by accused came to be dismissed on the ground that the accused has not mentioned as to what was legally due from him to the Bank or what amount mentioned in the cheque was not legally recoverable from him at the relevant time, which reasoning given by learned Court below does not appear to be plausible, in view of the specific stand taken by accused in his application filed under S.145 (2), wherein he has stated that the accused issued blank cheque as security to the complainant, but complainant filled up wrong amount in the said cheque and subsequently concocted a false story with a view to grab money from the accused. Accused specifically mentioned in the application that he wants to cross-examine complainant’s witnesses, who have given evidence on affidavit to protect his interest as well as to bring truth before the court.
Having carefully perused aforesaid plea raised by accused in the application, this court is not in agreement with the findings recorded by learned Court below, while passing impugned order that the defence plea raised by the accused is neither substantial nor specific. Accused has specifically taken a plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant, as such, accused is well within his right to cross-examine the complainant and its witnesses, specifically on the aforesaid points. Moreover, as has been observed herein above, a careful perusal of the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/reexamination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf.
Leaving everything aside, no prejudice, whatsoever, would be caused to the complainant, in case, complainant and its witnesses are cross-examined on the specific points, taken note herein above, rather, this would help the court below to effectively adjudicate upon the controversy inter se parties.
Consequently, in view of detailed discussion made herein above, present petition is allowed. Order dated 2.2.2019 passed by learned Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh in Case No. 295-IV/16 is quashed and set aside. Application moved by the accused under S.145(2) is allowed. Learned Court below to fix a date for cross-examination of the complainant and its witnesses. – – – – (Paras 15, 16, 17 and 18)
Result: Petition allowed.
JUDGMENT (ORAL)
Sandeep Sharma, J.—Being aggrieved and dissatisfied with order dated 2.2.2019 passed by learned Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh in Case No. 295-IV/16, whereby an application under S.145(2) of the Negotiable Instruments Act (hereinafter, ‘Act’), having been filed by the petitioner-accused (hereinafter, ‘accused’), seeking therein permission to cross-examine the respondent-complainant (hereinafter, ‘complainant’), came to be dismissed, accused has approached this Court in the instant proceedings filed under S.482 CrPC, praying therein to set aside the impugned order and permit the accused to cross-examine the complainant.
2. Necessary facts, as emerge from the record are that the complainant initiated proceedings under S.138 of the Act against the accused in the competent Court of law, alleging therein that a Term Loan facility was availed by the accused amounting to Rs.5,75,000/- on 17.12.2014 for the purchase of Tractor. Entire loan amount was paid by the complainant to the dealer. Accused opened account No. JT-72 with the Bank and he, with a view to discharge his liability on account of loan availed by him, issued Cheque No. 656081 on 12.7.2016, amounting to Rs.5,90,000. However, the fact remains that the aforesaid cheque subsequently came to be dishonoured on account of insufficient funds in the account of the accused. Since the accused, despite having received legal notice served upon him, failed to make good the payment, complainant-Bank initiated proceedings under S.138 of the Act.
3. During proceedings of the case, an application under S.145(2) of the Act seeking therein permission to cross-examine the complainant and complainant’s witnesses on behalf of the accused, came to be filed, however, such application (Annexure P-2) was rejected by Court below vide order dated 2.2.2019 (Annexure P-3), on the ground that the accused has not mentioned as to what was legally due from him to the Bank or that the amount mentioned in the cheque was not legally recoverable from him at the relevant time. In the aforesaid background, accused has approached this Court in the instant proceedings, as has been taken note herein above.
4. Having heard learned counsel for the parties and perused the material available on record, vis-à-vis reasoning assigned in the impugned order passed by learned Court below, this Court is persuaded to agree with Mr. Prem P. Chauhan, learned counsel for the accused that there is/was no requirement, if any, for the accused to assign reasons in the application filed by him, seeking therein permission to examine complainant and its witnesses.
5. At this stage, it would be apt to reproduce provisions of S.145 of the Act ibid as under:—
“145. Evidence on affidavit.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”
6. Careful perusal of S.145(1) reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the evidence of the complainant may be given by him on affidavit and same, subject to all just exceptions can be read in evidence in any enquiry, trial or other proceeding under the said Code. S.145(2) further provides that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
7. Close scrutiny of the aforesaid provisions contained in S.145(2) clearly reveals that it is in two parts, first part provides that the court, of its own, may summon accused to examine him with regard to
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
