Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Cross-examination of the complainant - The right to cross-examine the complainant is fundamental in Section 138 NI Act cases, as it helps reveal facts and establish the defense. Courts generally recognize that the accused must be given an opportunity to cross-examine witnesses, including the complainant, to ensure a fair trial ["2025 0 Supreme(Raj) 2066"].
Court's authority to recall witnesses - Under Sections 145(2) of the NI Act and Section 311 of Cr.P.C., courts have the power to summon, examine, or re-examine witnesses at any stage of proceedings, including the complainant, to facilitate justice. This includes recalling witnesses for further cross-examination if necessary, although such discretion is subject to judicial approval ["2023 0 Supreme(HP) 249"] ["2024 0 Supreme(P&H) 986"].
Discretion of the Magistrate - The Magistrate is not obliged to call the complainant for examination under oath every time but has the discretion to do so based on the circumstances of the case. The court may rely on affidavits or verification documents for proceedings under Section 138, but the accused's right to cross-examine remains protected ["2024 0 Supreme(Cal) 1188"].
Legal procedures for cross-examination - When an application is made under Section 145(2) of the NI Act or Section 311 of Cr.P.C., courts are expected to allow the accused an opportunity to cross-examine the complainant or witnesses unless there are valid reasons for denial. Denying this opportunity can violate principles of natural justice ["2024 0 Supreme(Bom) 870"] ["2025 0 Supreme(Raj) 1371"].
Implications of denial of cross-examination - Denying the accused the chance to cross-examine the complainant can lead to orders being challenged or set aside, as it affects the fairness of the trial. Courts have reversed orders where the accused was deprived of this right, emphasizing the importance of cross-examination in ensuring justice ["2024 0 Supreme(P&H) 988"].
Main questions to pose during cross-examination - Questions should aim to establish the veracity of the debt, the authenticity of documents, and the circumstances of the transaction. Typical questions include:
Clarification on the signatures or documents produced ["2023 0 Supreme(Cal) 345"] ["
Vikas VS Moreshwar - Dishonour Of Cheque
"].Main points and insights:
References:- ["2024 0 Supreme(Cal) 1188"]- ["2024 0 Supreme(Bom) 870"]- ["2023 0 Supreme(HP) 249"]- ["2024 0 Supreme(P&H) 986"]- ["2024 0 Supreme(P&H) 988"]- ["2025 0 Supreme(Raj) 1371"]- ["
Vikas VS Moreshwar - Dishonour Of Cheque
"]- ["2023 0 Supreme(Cal) 345"]
In the high-stakes world of cases under (), effective of the complainant can make or break your defense. If you're wondering, What are model questions to cross-examine the complainant in Section 138 NI proceedings?, this guide provides practical insights, model questions, and legal strategies drawn from key judicial precedents. Whether you're a lawyer, business owner, or accused party, understanding these tools is crucial for rebutting the under .
Disclaimer: This article offers general information based on legal principles and is not a substitute for professional legal advice. Consult a qualified lawyer for case-specific guidance.
Section 138 criminalizes the dishonour of cheques due to insufficient funds or other reasons, treating it as a punishable offence. The complainant must prove issuance, presentation, dishonour, and notice service. However, a presumption arises under that the cheque was issued for a , shifting a burden on the accused to rebut it.
under allows the accused to test the complainant's evidence via , ensuring a . Courts have consistently upheld this as an absolute right essential for justice. For instance, The right to cross-examine the Complainant under Section 145(2) of the Negotiable Instruments Act is an essential component of a , and the courts must ensure that this right is upheld. 2023 0 Supreme(Bom) 2264
Denial of this right violates and . 2023 0 Supreme(P&H) 1652
probes the complainant's credibility, cheque details, debt existence, and procedural compliance. It targets admissions or denials on issuance, signature, delivery, liability knowledge, notice service, and post-dishonour conduct. The goal? Rebut the presumption by highlighting inconsistencies. 2025 7 Supreme 171
Key focus areas include:- Acknowledgment or denial of cheque issuance and represented liability. 2025 7 Supreme 171- Cheque ownership, signature authenticity, and delivery to complainant. 2025 7 Supreme 171- Awareness of debt/liability, notice receipt/service, and post-dishonour actions. 2025 7 Supreme 171
Courts recognize Section 138 cases blend civil and criminal elements, making pivotal to challenge presumptions. 2025 7 Supreme 171
Section 145(2) grants an unqualified right to cross-examine, even if proceedings delay. In one case, the court dismissed a petition challenging the 's order, directing the complainant to appear: The court held that the right to cross-examine the Complainant under Section 145(2) of the N.I. Act is absolute and unqualified. 2023 0 Supreme(Bom) 2264
Similarly, denials due to counsel changes or other reasons warrant opportunities, with costs if needed. 2023 0 Supreme(P&H) 1652
Under , courts may recall witnesses for further to ensure fairness, as affidavits from accused aren't permitted—only complainants enjoy this. 2024 0 Supreme(Kar) 278
Here are suggested model questions, tailored to elicit critical admissions/denials. Adapt them to case facts:
These questions systematically test foundational elements, potentially unraveling the complainant's case.
The defendant's admission/denial on cheque issuance, signature, and debt is crucial. Questions on account ownership, delivery, and notice are fundamental. 2025 7 Supreme 171
Magistrates may rely on affidavits for issuing process under , but , cross, and follow norms. Evidence means and includes all statements which the Court permits or requires to make before it. 2010 0 Supreme(Bom) 1708 2010 0 Supreme(Bom) 1702
must have transaction knowledge and file on principal's behalf. 2024 0 Supreme(All) 2172
Avoid delving into disputed facts needing trial evidence, like purpose or authorization—reserved for . 2015 0 Supreme(SC) 228- Don't shift burden to accused; complainant bears proof. 2025 7 Supreme 171- Stick to relevant, non-speculative questions.
can't prove facts or demand evidence production. 2025 7 Supreme 171
Effective in Section 138 cases hinges on targeted questions challenging presumptions and credibility. By focusing on admissions about the cheque, liability, and procedures, you strengthen defenses while upholding rights. Stay updated on precedents, as courts emphasize procedural justice.
For tailored strategies, engage a specialist. This overview equips you with model tools—use responsibly.
References:- 2025 7 Supreme 171: Core directions on focus.- 2015 0 Supreme(SC) 228: Limits on disputed facts.- 2023 0 Supreme(Bom) 2264: Absolute right under Section 145(2).- Others integrated as cited.
#Section138NIACT, #ChequeDishonour, #CrossExamination
Negotiable Instruments - Complaint Case - Section 138, 142, 145 of NI Act, Section 200 of CrPC - The court ... emphasized that a power of attorney holder can file a complaint under Section 138 of the NI Act if they possess personal knowledge ... Issues: Whether a power of attorney holder can file a complaint under Section 138 of the NI Act and whether ... the complainant to remain present before the Court, nor to examine the complainant#HL....
Fact of the Case: The petitioners challenged the Magistrate's order closing cross-examination in a Section ... However, the accused must disclose grounds for recalling such witnesses and probable defence on which he wants to cross examine the complainant and their witnesses. ... It is necessary to note here that on 25.9.2023, along with application for recall of order dated 14.8.2023, no application under Section 145(2) of the Act giving the ground and seeking permission to cross #HL_S....
Negotiable Instruments Act, 1881 - Sections 138, 145 - Indian Evidence Act, 187 - Section 138 – Criminal ... the witness, including the complainant, but within the parameters and framework of law as contained under Sections 137 and 138 of the Indian Evidence Act read with Section 142 of the NI Act. ... Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as....
Fact of the Case: The Petitioner, the original Complainant, filed a complaint under Section ... Complaint was filed for an offence under Sec. 138 of the N.I. Act on 13/9/2021. 3. The Complainant tendered affidavit of evidence. The accused preferred an application under Sec. 145(2) of the N. I. Act seeking permission to cross examine the Complainant. ... The accused cannot be deprived of right to cross-examine. The Respondent had preferred an applicat....
Insofar as the application under Section 311 of the Cr.P.C., is concerned, the learned counsel would submit that the accused was offered for cross-examination on 28-06-2023. The complainant did not choose to cross-examine her. ... —Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any p....
138 of the Negotiable Instruments Act, where cheques issued by the accused were dishonored. ... petitioner challenged the dismissal of his application to recall the complainant for further cross-examination in a case under Section ... It is not the case that the petitioner did not cross-examine the witness at all or only formal questions were put to complainant during cross-examination. It is not even the case that complainant has come out with some ....
It is not the case that the petitioner did not cross-examine the witness at all or only formal questions were put to complainant during cross-examination. It is not even the case that complainant has come out with some new evidence necessitating clarification. ... Kesar Singh's case (Supra) pertains to offence under Section 138 of Negotiable Instruments Act wherein recalling of the complainant and another witness for further #HL_STA....
However, he filed an application under Section 145(2) of NI Act, thereby making prayer for granting opportunity to firstly cross-examine the respondent-complainant and the said prayer has been declined. 7. ... The application as filed by the petitioner before the learned Trial Court for granting him opportunity to cross-examine the respondent is allowed and the Trial Court is directed to grant sufficient opportunity to the complainant to conduct cross#HL_END....
(A) Negotiable Instruments Act, 1881 - Section 138 - Power of attorney holder cannot file a complaint in his own name; must act on ... 138 of the N.I. ... Paras 26, 27) ... ... Facts of the case: ... The applications sought to quash proceedings under Section ... present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act. ....
Moreover, the power to cross-examine a witness is not enshrined in Section 311 of the Cr.P.C., rather it is prescribed in Section 138 of the Indian Evidence Act, which gives a party the right to cross-examine a witness, who is not his own witness. ... Moreover, the failure to cross-examine the complainant was attributed to change of counsel by the petitioner. ... If a witness called by Court gives evidence against ....
In my considered view, the ‘complainant’ in the proceedings under Section 138 N.I. Act, in case they end up in acquittal i.e. whether to prefer appeal under Section 372 or 378(4) Cr. P.C. 13. Act cannot be considered ‘victim’ in the letter and spirit of the definition of Section 2 (wa) of the Code and definition of ‘injury’ under Section 44 IPC cannot be imported into Section 138 N.I.
In order to ascertain whether it is mandatory for the Magistrate to examine the complainant in a complaint under Section 138 of the N.I. Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issuance of process under Section 200 of Cr.P.C. it is necessary to examine whether the provisions of Sections 142 and 145 of the N.I. Act which is special enactment dispenses with the said requirement of Section 200 of Cr.P.C.” (emphasis supplied) 53. The Division Bench posed the following question, in paragraph 16 of the judgment:- “16.
In order to ascertain whether it is mandatory for the Magistrate to examine the complainant in a complaint under Section 138 of the N.I. Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issuance of process under Section 200 of Cr.P.C. it is necessary to examine whether the provisions of Sections 142 and 145 of the N.I. Act which is special enactment dispenses with the said requirement of Section 200 of Cr.P.C.” (emphasis supplied) The Division Bench posed the following question, in paragraph 16 of the judgment:- “16.
The same was returned with the endorsement refer to drawer. Act in JFCM Court by Kozhikode as C.C.No.982/2000 against one Unnikrishnan who issued the cheque. The complainant initiated proceeding under Section 138 of N.I. The above complaint was dismissed as the cheque was not bearing account number of the above Unnikrishnan in the opposite party bank.
In order to ascertain whether it is mandatory for the Magistrate to examine the complainant in a complaint under Section 138 of the N.I. Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issuance of process under Section 200 of Cr. P.C. It is necessary to examine whether the provisions of Sections 142 and 145 of the N.I.
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