The right to cross-examine a complainant under Section 145(2) of the NI Act is fundamental for a fair trial, and requiring specifics in the application for cross-examination is not a legal prerequisite.

JUDGMENT:

1. The petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India and inherent powers of this Court under Section 482 of Code of Criminal Procedure . The petitioner takes exception to order dated 21.02.2023 passed by the learned Judicial Magistrate First Class 'A' Court, Vasco-Da- Gama below Exhibit 45 in Criminal Case No.OA/244/OA/ NIA /2019/A rejecting the petitioner’s application under Section 145 (2) of the Negotiable Instruments Act .

2. The respondent is the complainant. The complaint is filed under Section 138 of the Negotiable Instruments Act before the Court of learned Judicial Magistrate First Class, Vasco. It is alleged that complainant needed finance to revamp his business operations. Services of the accused were engaged as a facilitator for obtaining finance from a private licenced moneylender. The accused examined the financial solvency and credentials of the complainant and promised to arrange a loan of Rs.14 crores from moneylender. The accused quoted commission of 1% of required finance. The accused collected from the complainant, all the necessary papers required for the purpose of the proposed loan and also collected in advance, his full commission amounting to Rs.14,00,000/-. The amount was transferred by R.T.G.S. Eventually, the accused expressed his inability to arrange the promised loan and agreed to refund the commission amount of Rs.14 lakhs collected by him from the complainant with interest. The accused issued a cheque of Rs.15,47,000/- which included principal amount and the agreed interest. The cheque was dishonoured for want of sufficient funds. Notice dated 03.06.2019 was issued to the accused demanding the amount. The accused vide letter dated 10.07.2019 regretted his inability to honour the cheque and issued a fresh cheque dated 25.07.2019. The said cheque was dishonoured on 30.09.2019 for want of sufficient funds. Demand notice dated 04.10.2019 was issued to the accused. The notice was returned undelivered by the post office on the ground that the accused had left the address at which it was sent. The complainant thereafter personally served the notice on accused. Complaint was filed.

Process was issued against accused.

3. The petitioner preferred an application under Section 145 (2) of the Negotiable Instruments Act (N.I. Act) seeking leave to permit the accused to cross-examine the complainant. The application was rejected vide order dated 21.02.2023. While rejecting the application, the learned Magistrate observed that, vague statement is made in the application that there is no legally enforceable liability. There are no particulars set out by the accused to substantiate this statement. It is simply stated that material facts have been suppressed and false and fabricated complaint is filed. Even in written arguments filed by the accused, no probable defense is set out. Vague statements have been made that complainant has concocted a false story to harass the accused and grab the money. Loose statements are made that the accused does not owe any debt/liability and accused wants to cross-examine the complainant to protect his interest and bring the truth before the Court. Based on vague statements the Court cannot arrive at the satisfaction that accused has a probable defense for which complainant must be recalled and accused must be granted leave to cross-examine complainant. The complainant cannot be recalled only to give accused the pleasure of cross-examining him. The signature on the cheque is not disputed. Mandatory presumption has to be raised under Section 139 of the NI Act that the cheque was issued in discharge of liability. It is for the accused to rebut this