The central legal point established in the judgment is the mandate of Section 145(2) of the Negotiable Instruments Act, which requires the court to allow the accused's application and grant an opportunity for cross-examination.

JUDGMENT :

1. The present petition is directed against the order dated 12.07.2018 passed by the Special Judge, SW Dwarka, New Delhi in CT Cases 13878/2017 wherein the application filed by the petitioner under Section 145(2) of N.I. Act was dismissed on the ground that no cross-examination of the complainant was required.

2. Learned counsel for the petitioner submitted that the present petition relates to the proceeding under Section 138 of Negotiable Instruments Act. The trial court, on 31.05.2018, framed notice under Section 251 Cr.P.C. against the petitioner to which he pleaded not guilty and claimed trial and took the defence that there is no legally enforceable liability as the cheques were not issued towards any debt or liability. Further, it was stated that the cheques were blank bearing signatures of the petitioner. It was further stated that the cheque book was stolen/misplaced in 2016 for which complaint was made to police station and NCR dated 13.07.2016 was issued by the police. It is thus the stand of the petitioner that the complainant had misused the stolen cheque.

3. Learned counsel for the petitioner submitted that on 31.05.2018, when notice under Section 145(2) N.I. Act was framed against the petitioner, an opportunity to file application under Section 145(2) N.I. Act was granted. It was directed that the same be filed before the next date of hearing i.e., 12.07.2018.

4. However, on 12.07.2018, an application for exemption from personal appearance on behalf of the petitioner was moved. The Metropolitan Magistrate dismissed the application under Section 145(2) N.I. Act on the grounds already mentioned above. On the same day, the complainant’s evidence and statement of accused was also dispensed with. The matter was listed for defence evidence on 06.09.2018.

5. Learned counsel for the petitioner has prayed that one opportunity be given to the petitioner to cross-examine the complainant. A perusal of the order sheets in the present case show that the respondent was served and on 13.12.2018, the counsel for the respondent appeared and sought time to file reply. However, on the next date, while recording the statement that no reply is required, the matter was listed for final disposal on the next date. The matter was passed over however, neither the respondent nor his counsel appeared.

6. Section 145(2) Negotiable Instruments Act, 1881 mandates that once an application by the accused is filed, the court is obliged to summon the person who has given evidence on affidavit in terms of Section 145(1) N.I. Act, 1881.

7. In Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore reported as (2010) 3 SCC 83, the Supreme Court held as under:-

“30. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760 of 2006 pointed out that sub-section (2) of Section 145 uses both the words, "may" (with reference to the court) and "shall" (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination- in-chief and be required to verbally state what is already said in the affidavit.

xxx xxx xxx

34. As a matter of fact, section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court