Case Note & Summary
The petitioner, Rakesh Singh, filed two criminal writ petitions challenging the order dated 07/10/2023 passed by the trial court in two complaints under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) filed by respondent no.1, Anil Madanmohan Gulati. The trial court had rejected the petitioner's applications under Section 145(2) of the NI Act seeking permission to cross-examine the complainant. The petitioner had been summoned in the complaints and pleaded not guilty on 05/04/2022. On 21/06/2022, he filed applications at Exhibit D-33 seeking to cross-examine the complainant under Section 145(2), setting up a defence that there was no legally enforceable debt as claimed, that he had no loan transaction with the complainant, and that he did not receive any notice under the NI Act. The respondent no.1 opposed the applications, arguing that the petitioner had not set out any specific points of defence. The trial court rejected the applications, holding that since the petitioner had not filed a written statement, he could not be permitted to cross-examine the complainant. The High Court considered the issue of whether the right under Section 145(2) is conditional upon filing a written statement. The court held that Section 145(2) gives an absolute right to the accused to cross-examine the complainant, and this right is not dependent on filing a written statement. The court noted that the accused can exercise this right at any stage before the conclusion of the trial. The court found that the trial court had erred in rejecting the applications solely on the ground that no written statement was filed, without considering the defence raised. The High Court allowed the petitions, set aside the impugned orders, and directed the trial court to permit the petitioner to cross-examine the complainant. The court clarified that the trial court may impose reasonable costs if the cross-examination is intended to delay the proceedings.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 145(2) - Right to Cross-Examine - The right of the accused to cross-examine the complainant under Section 145(2) of the Negotiable Instruments Act, 1881 is an absolute right and not conditional upon the filing of a written statement or setting out specific points of defence. The trial court erred in rejecting the application solely on the ground that the accused had not filed a written statement. (Paras 7-12) B) Criminal Procedure - Negotiable Instruments Act - Section 145(2) - Stage of Cross-Examination - The accused can exercise the right to cross-examine the complainant under Section 145(2) at any stage before the conclusion of the trial, and the court cannot refuse the application merely because the accused has not disclosed his defence in detail. (Paras 13-15) C) Criminal Procedure - Negotiable Instruments Act - Section 145(2) - Rejection of Application - The order rejecting the application for cross-examination was set aside as it failed to consider the defence raised by the accused that there was no legally enforceable debt and that no notice was received. The matter was remanded back to the trial court to permit cross-examination. (Paras 16-18)
Issue of Consideration
Whether the trial court was justified in rejecting the accused's application under Section 145(2) of the Negotiable Instruments Act, 1881 for cross-examination of the complainant on the ground that the accused had not filed a written statement or set out specific points of defence.
Final Decision
The High Court allowed the writ petitions, set aside the impugned orders dated 07/10/2023, and directed the trial court to permit the petitioner to cross-examine the complainant under Section 145(2) of the NI Act. The trial court may impose reasonable costs if cross-examination is intended to delay proceedings.
Law Points
- Right to cross-examine complainant under Section 145(2) NI Act is absolute and not conditional upon filing written statement
- Accused can exercise right at any stage before conclusion of trial
- Rejection of application for cross-examination without considering defence is improper
