Case Note & Summary
The Petitioner, Narayan Shivdas Kadam, was an accused in a complaint filed by M/S Shriram Transport Finance Co. Ltd. under Section 138 of the Negotiable Instruments Act, 1881, pending before the learned Judicial Magistrate First Class at Panaji, Goa. The Petitioner filed an application under Section 145(2) of the N.I. Act seeking to cross-examine the Complainant, disclosing specific defences including that the cheque was given as security and not towards any legally enforceable debt, that the Complainant had already recovered the vehicle and sold it, and that the amount claimed was inflated. The learned Magistrate rejected the application on the ground that the Petitioner failed to disclose specific defence. The Petitioner challenged this rejection by filing a Criminal Writ Petition under Section 482 of Cr.P.C. and Articles 226 and 227 of the Constitution of India before the High Court of Bombay at Goa. The High Court heard the parties and considered the submissions. The Petitioner argued that the Magistrate committed a jurisdictional error by denying the valuable right of cross-examination and misconstrued the law laid down by the Apex Court. The Respondent supported the Magistrate's order. The High Court analyzed the provisions of Section 145(2) of the N.I. Act and the decisions of the Supreme Court in Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore and other cases, which held that once the accused discloses specific defence, the Magistrate must allow the application for cross-examination. The Court found that the Petitioner had disclosed specific grounds of defence in his application, and the Magistrate's order showed non-application of mind. The High Court quashed and set aside the impugned order and directed the Magistrate to allow the application and grant an opportunity to the Petitioner to cross-examine the Complainant. The Court also directed the Magistrate to expedite the trial and complete it within six months.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 145(2) - Right of Cross-Examination - The Petitioner, an accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed an application under Section 145(2) seeking to cross-examine the Complainant, disclosing specific defences such as the cheque being given as security and not for discharge of debt. The Magistrate rejected the application on the ground that the Petitioner failed to disclose specific defence. The High Court held that the Petitioner had disclosed sufficient grounds of defence and the Magistrate's order suffered from non-application of mind and jurisdictional error. The impugned order was quashed and set aside, and the Magistrate was directed to allow the application and grant an opportunity for cross-examination. (Paras 1-25)
Issue of Consideration
Whether the learned Magistrate erred in rejecting the Petitioner's application under Section 145(2) of the Negotiable Instruments Act, 1881, seeking to cross-examine the Complainant, despite the Petitioner disclosing specific grounds of defence.
Final Decision
The High Court allowed the petition, quashed and set aside the impugned order dated 18th December 2023 passed by the learned Judicial Magistrate First Class at Panaji, Goa, in CC No. 123/2023/NI/2019. The Court directed the learned Magistrate to allow the application under Section 145(2) of the N.I. Act and grant an opportunity to the Petitioner to cross-examine the Complainant. The Court also directed the Magistrate to expedite the trial and complete it within six months from the date of the order.
Law Points
- Right of cross-examination under Section 145(2) of Negotiable Instruments Act
- 1881
- Disclosure of specific defence
- Non-application of mind by Magistrate
- Jurisdictional error
