The central legal point established in the judgment is the mandate contained in Section 145(2) N.I. Act, which obliges the concerned Court to summon a person who has given evidence on affidavit in terms of Section 145(1) N.I. Act if an application is filed by the accused.

JUDGMENT

Manoj Kumar Ohri, J. - The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioners assailing the order dated 03.12.2021 passed by the learned M.M. (N.I. Act), Digital Court-01, South District, Saket Courts, New Delhi in CC No. 67/2020, vide which the petitioners application under Section 145(2) N.I. Act seeking cross-examination of the complainant witness has been dismissed.

2. Learned counsel for the petitioners/accused submits that on 03.12.2021, the Trial Court had framed notice under Section 251 Cr.P.C., to which the accused pled not guilty. On the same date, an application already filed on 10.09.2021 under Section 145(2) N.I. Act was pressed, however the same was dismissed by the Trial Court without assigning any reason, except for saying that no valid ground of defence had been put forward by the accused. Learned counsel has placed reliance on the decisions rendered by this Court in Ashish Aggarwal v. Sushil Kumar reported as 2020 SCC OnLine Del 1761 and Sunil Agarwal v. Sunil Gupta and Ors. reported as MANU/DE/4676/2019 in support of his case. He prays that the application filed on behalf of the accused under Section 145(2) N.I. Act may be allowed, and undertakes that in case the said relief is granted, the accused will not seek any adjournment before the Trial Court in that regard.

3. Issue notice.

4. Mr. Aditya Prasad, Advocate appears for the respondent and accepts notice. He submits that the order dated 03.12.2021 would show that the Trial Court had gone through the defence put forward in reply to the notice framed under Section 251 Cr.P.C., and thus, the same is not liable to be set aside.

5. I have heard learned counsels for the parties and also perused the material placed on record.

6. Before adverting to the facts of the present case and the position of law on the subject, it is deemed apposite to reproduce Section 145(2) N.I. Act which reads as under:-

"145. Evidence on affidavit

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(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."

7. A bare perusal of the provision would show that once an application is filed by the accused thereunder, the concerned Court is obliged to summon the person who has given evidence on affidavit in terms of Section 145(1) N.I. Act. The Supreme Court in Radhey Shyam Garg v. Naresh Kumar Gupta reported as (2009) 13 SCC 201 has expounded the law on the issue as follows:-

"10. Whereas sub-section (1) of Section 145 uses the term "may", sub-section (2) thereof uses the term "shall". The first part of the aforementioned provision must be read with sub-section (1) of Section 145. It, therefore, merely points out to the discretionary power of the court conferred upon it by reason thereof. The court, however, has no other option but to summon and examine any person who has given evidence on affidavit as to the facts contained therein if an application is filed either by the prosecution or the accused. Section 145 must be read reasonably." (emphasis added)

8. Likewise, in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore reported as (2010) 3 SCC 83, the Supreme Court has enunciated the mandate contained in Section 145(2) N.I. Act in the following terms:-

"30. 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" (emphasis added)

9. On a conspectus of the statutory provision that is Section 1