2024:BHC-GOA:424 WPCR 5 OF 2024.ODT Esha IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 5 OF 2024 Narayan Shivdas Kadam, son of Shivdas Kadam, 35 years of age, Resident of H. No. 544/A, Near Sai Baba Temple, opp. Fisheries Jetty, Penha De France, Malim, Betim, Bardez, Goa. … Petitioner Versus M/S Shriram Transport Finance Co. Ltd., A Limited Company incorporated under the Indian Companies Act, 1956 having its Registered Office at 3^rd floor, Mookambika complex, No. 4, Lady Desika road, Mylapore, Chennai - 600004, Tamil Nadu and having its branch office at 412, 4^th floor, Gera Imperium, Patto Plaza, Panaji – Goa. Represented herein by its duly constituted Attorney Ms. Jaimala Gaunekar, d/o Mr. Mangaldas Gaunekar, aged 27 years, r/o Deugi wado, Charao, Tiswadi - Goa. … Respondent *****

Mr. Vibhav R. Amonkar with Mr. Siddhant R. Shetye, Advocates for the Petitioner.

Mr. Vithal Naik, Advocate for the Respondent.

CORAM: BHARAT P. DESHPANDE, J.

RESERVED ON: 6^th FEBRUARY 2024 PRONOUNCED ON: 26^th FEBRUARY 2024

JUDGMENT:

1.

Rule. Rule made returnable forthwith.

2.

Heard the parties with consent for final disposal at the admission stage.

3.

In the present Petition filed under Section 482 of Cr.P.C and Articles 226 and 227 of the Constitution of India, the Petitioner who is an Accused, in a matter pending before the learned Magistrate for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act, for short), is challenging the rejection of his Application filed under Section 145(2) of the N.I. Act by the learned Magistrate.

4.

Heard Mr. Vibhav Amonkar for the Petitioner and Mr. Vithal Naik for the Respondent.

5.

Mr. Amonkar would submit that the impugned order shows non-application of mind and denial of an opportunity to cross- examine the Complainant by disclosing specific defence in the Application. He submits that the learned Magistrate committed a jurisdictional error, thereby denying the valuable right of the Petitioner to cross-examine the Complainant and misconstrued the law laid down by the Apex Court as well as by this Court. Accordingly, he submits that the Application disclosing the grounds of defence need not elaborate on each and every ground for defence.

He submits that the procedure requires the Accused to disclose the grounds of his defence which the Petitioner has disclosed. He submits that however, without considering the mandate that once such Application is filed, disclosing specific defence, the Magistrate shall grant such Application by summoning the Complainant, show that impugn order needs interference.

6.

Mr. Amonkar placed reliance on the following decisions: (i) Mandvi Cooperative Bank Ltd. Vs. Nimesh B.

Thakore, (2010) 3 SCC 83;

(ii) Meters and Instruments Pvt. Ltd. Vs. Kanchan Mehta, AIR 2017 SC 4594;

(iii) Rakesh Singh Vs. Anil Madanmohan Gulati, (Criminal Writ Petition No.35 of 2023 decided on 09.05.2023);

(iv) Jose Carmo Medard Fernandes Vs. Babu Sheikh (Criminal Writ Petition No.31 of 2023 decided on

28.08.2023);

(v) Shantal Kamat Vs. Milind Ladu Kerkar, (Criminal Writ Petition No.227 of 2023 (F)

decided on 11.10.2023);

(vi) K. Narsimulu Vs. Naguesh C. Dandi, (Criminal Writ Petition No.634 of 2023 (F) decided on

18.10.2023) and (vii) Gautami Govind Naik Vs. Bori Urban Cooperative Credit Society, (Criminal Writ Petition No.676 of 2023 (F) decided on

06.11.2023).

7.

Mr. Naik appearing for the Respondent would submit that the Application filed by the Accused for permission to cross-examine the Complainant must set out the specific defence and not only the moonshine defence. It is submitted that the Accused has to satisfy the Court that it is a probable defence. He submits that the Application filed by the Petitioner is vague and is only an attempt to bye-pass and prolong the procedure. He submits that the learned Magistrate has rightly rejected the Application as so-called grounds, on which, the Petitioner is claiming or raising defence are only phrases, which are normally used while arguin