2023 (5) TMI 645 - HC - Indian Laws

Dishonour of Cheque - right of the accused to cross examine the complainant - section 145(2) of the NI Act - applications under section 145(2) of the NI Act were opposed by the respondent no. 1 on the ground that the petitioner has not set out any specific point of defence and the application is mere denial of the complaint - HELD THAT:- The question of considering the special provisions laid down by section 145 of the NI Act for a dishonoured cheque trial and to consider how far certain assertions made by the accused are in accordance with the provisions contained in the two sub-sections of that section came came up for consideration before the Supreme Court in MANDVI CO-OP. BANK LTD. VERSUS NIMESH B. THAKORE [2010 (1) TMI 570 - SUPREME COURT] - The Supreme Court held that the evidence on affidavit given by the complainant or his witness under section 145(1) is in the nature of his examination-in-chief and on being summoned by the Court on application made by the accused under section 145(2), is not required to depose again in examination-in-chief before being cross examined as to the facts stated in the affidavit.

In M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME COURT], the Supreme Court was considering the issue as regards the rejection of the prayer by the High Court for compounding offence under section 138 of NI Act on payment of cheque amount and in the alternative for exemption from personal appearance. When the matter came up for hearing before the Supreme Court, notice was issued to consider the question as to how the proceedings for an offence under section 138 of the Act can be regulated, where the accused is willing to deposit the cheque amount. The question for consideration was “Whether in such a case, the proceedings can be closed or exemption granted from personal appearance or any other order can be passed”.

The accused has right to a fair trial. Once it is recognised that the accused has absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination, the applicant cannot be deprived of such a right unless there are some extraordinary reasons for doing so. In fact, the object of section 145(2) is explained by the Supreme Court in Meters and Instruments Private Limited and anr. The Hon’ble Supreme Court in paragraph 9 observed that “the object of section 145(2) was simpler and swifter trial procedure. Only requirement is that the evidence must be admissible and relevant. The affidavit of the complainant can be read as evidence”. The Supreme Court held that the accused has to disclose specific defence to contest the case.

The trial Court, committed error in observing that the petitioner is silent on the specific ground of defence or point on which he wishes to cross examine the complainant. It may be that the petitioner has an opportunity to lead defence evidence and rebut the presumption if any, however, that does not mean that the valuable right of the petitioner to cross examine the complainant which he is entitled to under section 145(2) of the NI Act can be lightly brushed aside.

The decision relied upon by learned counsel for the respondent in RUKMAKAR @ BHARAT TULSHIDAS NAIK VERSUS SANTOSH SHABA GAONKAR & ANR [2019 (4) TMI 2105 - BOMBAY HIGH COURT] is distinguishable on facts as this Court was of the opinion that the application was filed in a casual manner. The petitioner therein had not set out the grounds in the application or during the course of hearing of the application to cross-examine the complainant. It is in those circumstances that the order passed by the trial Court was not interfered with.

Petition allowed.