2020 (9) TMI 103 - HC - Indian Laws

Court Upholds Right to Cross-Examine: Defense Justifies Recall for Examination (2)

The court dismissed the challenge against the order allowing the respondent/accused to cross-examine the complainant under Section 145(2) of the ... Dishonor of Cheque - section 138 of NI Act - permission to cross examine the complainant - Section 145(2) of Negotiable Instrument Act - HELD THAT:- From perusal of the impugned order, it does not appear that the learned Magistrate tried the case against the respondent under the procedure of summary trial. Under the provision of Section 145(2) of N.I. Act the respondent/accused has liberty to make an application for recalling the witness for cross-examination on plea of defence. The applicant has not filed the plea of defence of accused recorded by the trial court, therefore, it cannot be said that there is no probable defence is available to the respondent/accused for cross-examination of the complainant. This court is of the view that the trial court has not committed any error in allowing the application under Section 145(2) of N.I. Act to permit the respondent/accused for recalling the complainant for his cross-examination, hence, there is reason available to interfere with the impugned order - Petition dismissed. Issues:1. Challenge against the order allowing the respondent/accused to cross-examine the complainant under Section 145(2) of the Negotiable Instrument Act.2. Allegation of loan advanced and dishonored cheque under Section 138 of the N.I. Act.3. Legal interpretation of Section 145(2) of the N.I. Act regarding the right to recall a witness for cross-examination.Analysis:1. The petitioner challenged the order permitting the respondent/accused to cross-examine the complainant under Section 145(2) of the N.I. Act. The petitioner argued that the respondent did not disclose his defense or reasons for cross-examination, citing the judgment of the Supreme Court and the Delhi High Court in support. However, the court found that the trial court did not conduct a summary trial, and the respondent has the right to apply for recalling a witness for cross-examination based on a plea of defense. Since the defense of the accused was not filed, the court held that there was a probable defense for cross-examination, thereby dismissing the challenge against the impugned order.2. The case involved the petitioner filing a private complaint against the respondent/accused under Section 138 of the N.I. Act for issuing a dishonored cheque of a significant amount. Despite issuing a notice for payment and the respondent's failure to comply, the petitioner initiated legal proceedings. The trial court summoned the accused, who denied the charges and requested cross-examination of the complainant under Section 145(2) of the N.I. Act. The petitioner contended that the trial court erred in allowing this application without the accused disclosing his defense. However, the court found that the accused's right to cross-examine is based on a probable defense, leading to the dismissal of the challenge against the trial court's order.3. The legal interpretation of Section 145(2) of the N.I. Act was crucial in this judgment. Referring to the case law of Harish Chandra Biyani Vs. Stock Holding Corporation of India Ltd., the court highlighted that the complainant can provide evidence by way of an affidavit, which may be subject to cross-examination if requested by the accused. The court emphasized that the trial court must summon and examine any person giving evidence on affidavit as to the facts stated therein, as per the provisions of Section 145(2). The court clarified that the accused's right to cross-examine is a procedural safeguard, and in this case, the trial court did not err in allowing the respondent/accused to recall the complainant for cross-examination under Section 145(2) of the N.I. Act. Therefore, the petition was dismissed for lacking merit.