Point of Law: Section 145(2) of Act, clearly reveals that Court on receipt of application of prosecution or accused has no option but to summon and examine any person giving evidence on affidavit as to facts contained therein.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with the order dated 7.01.2019 passed by learned Additional Chief Judicial Magistrate, Court No.1, Amb, District Una, H.P., whereby an application under Section 145(2) of the Negotiable Instruments Act, seeking therein permission to cross-examine the complainant and his witnesses, preferred on behalf of the petitioner-accused, came to be dismissed, petitioner-accused has approached this Court in the instant proceedings filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, praying therein to set-aside the aforesaid order and grant one opportunity to cross-examine the complainant and his other witnesses adduced in support of the averments contained in the complaint.

2. Precisely, the facts as emerge from the record are that the respondent (hereinafter referred to as the ‘complainant’) instituted a complaint under Section 138 of the Negotiable Instruments Act (for short Act) in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Amb, District Una, H.P., alleging therein that petitioner-accused (hereinafter referred to as ‘accused’) issued cheque amounting to Rs.90,000/- in favour of the complainant towards discharge of his lawful liability. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused. Since, despite having received legal notice, accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to initiate proceedings under Section 138 of the Act, in the competent court of law in the year 2014, but accused could be only served in the year 2016, where-after matter repeatedly came to be adjourned on the request of accused for exploring the possibility, if any, of compromise interse him and the complainant. Subsequently, on 7.01.2019, accused preferred an application under Section 145(2) of the Act, seeking therein permission to cross-examine the complainant and his witnesses, but trial Court having taken note of the fact that repeatedly matter came to be delayed by the accused, dismissed the application and posted the matter for DWs 23.02.2019. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings.

3. I have heard learned counsel representing the parties and perused the material available on record.

4. Though, material available on record clearly reveals that complaint at hand was filed somewhere in the year 2014, but on one pretext or other, accused had been avoiding service and he could only be served in the year 2016. Even thereafter, matter repeatedly came to be adjourned, enabling the accused to compromise the matter with the complainant. However, after closure of the evidence of the complainant, accused preferred an application under Section 145(2) of the Act, seeking therein permission to cross-examine the complainant and his witnesses.

5. At this stage, it would be profitable to reproduce Section 145(2) of the Act herein:-

“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 Section 145(2) of the Act, clearly reveals that Court on receipt of application of prosecution or the accused has no option but to summon and examine any person giving evidence on affidavit as to the facts contained therein. Once application under Section 145(2) of the Act is filed on behalf of accused, praying therein to cross-examine the complainant or his witnesses, Court below have no option,