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2020 (2) TMI 470 - HC - Indian LawsPrinciples of natural justice - Dishonor of Cheque - section 138 of NI Act - opportunity to cross-examine the witness - right to move an application under Section 145(2) NI Act was already closed - HELD THAT:- Section 145(2) Negotiable Instruments Act, 1881 mandates that once an application by the accused is filed, the court is obliged to summon the person who has given evidence on affidavit in terms of Section 145(1) N.I. Act, 1881. Reliance placed in the case of MANDVI CO-OP. BANK LTD. VERSUS NIMESH B. THAKORE [2010 (1) TMI 570 - SUPREME COURT] where it was held that The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant’s evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant’s evidence and to extend the same option to the accused as well. The trial court ought to have allowed the petitioner’s application filed under Section 145(2) N.I. Act - the present petition is allowed, subject to payment of costs of ₹ 10,000/- by the petitioner out of which ₹ 5,000/- shall be paid to the complainant and ₹ 5,000/- shall be deposited with the “Delhi High Court Legal Services Committee” within a period of two weeks from the passing of the order - application allowed.
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