Specific defence required for cross-examination under Section 145(2) in a Section 138 NI Act prosecution.

In a Section 138 NI Act prosecution, an accused seeking recall of the complainant under Section 145(2) must disclose a specific defence and the precise points proposed for cross-examination. A bare application without any probable defence or stated basis for questioning is insufficient, because summary trial procedure and the accused's earlier silence may justify rejection of the request. On those facts, the Bombay HC upheld the Magistrate's refusal to grant leave for cross-examination and declined liberty to file a fresh application.

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Issues: Whether an accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881, can be granted leave to cross-examine the complainant under Section 145(2) without disclosing a specific defence or the points on which cross-examination is sought, and whether liberty should be granted to file a fresh application.

Analysis: The proceeding under Section 138 of the Negotiable Instruments Act, 1881 is to be conducted in a summary manner. After the accused appears, the Magistrate is to proceed under Section 251 of the Code of Criminal Procedure, 1973 and, if recall of a witness is sought under Section 145(2) of the Negotiable Instruments Act, 1881, the accused must disclose the specific defence to be contested. The application in question did not state any probable defence or identify the points for cross-examination, and the accused had not disclosed such grounds even at earlier stages. In these circumstances, the Court found no basis to interfere with the Magistrate's order and declined to permit a fresh application, as the possibility of a belatedly invented defence could not be ruled out.

Conclusion: The refusal to grant leave for cross-examination was upheld, and no liberty to file a fresh application was granted.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, an accused seeking recall of the complainant under Section 145(2) must disclose a specific defence and the basis of cross-examination; a bare application without such disclosure can be rejected.

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