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2021 (2) TMI 1345 - HC - Indian LawsDishonour of Cheque - Validity of order allowing the accused/respondent no. 1 to cross examine the complainant - it is alleged that accused received the SCN, but failed to reply and neglected to comply with the statutory notice and to pay the amount - section 138 of NI Act - HELD THAT:- In the present matter also inspite of notice no reply is filed nor notice was complied by the accused. Thus he was having first opportunity to set out his defence. In the normal circumstances, the party is not required to seek leave to cross examine the witness of an advisory. In view of the judgment of the Apex Court in RUKMAKAR @ BHARAT TULSHIDAS NAIK VERSUS SANTOSH SHABA GAONKAR & ANR [2019 (4) TMI 2105 - BOMBAY HIGH COURT], the accused is required to file an application seeking leave to cross examine the complainant. At that juncture the accused is having the second opportunity to set out grounds of his defence. Thirdly even during the arguments on that application and answer to the questions which may be posed by the learned Magistrate which is permissible. But it appears that he has not set out any ground or probable defence. Even in this matter also he failed to file any say and appear in the matter. The learned JMFC erred in granting the application of the accused to cross examine the complainant without there being any probable defence or any reason in the said application. The learned JMFC, ought to have considered that there was no reply to the statutory notice nor there is any probable defence set out in the application. Application rejected.
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