Case Note & Summary
The petitioner, Kishor Biradmal Bhandari, filed a Criminal Writ Petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 21.02.2023 passed by the learned Judicial Magistrate First Class 'A' Court, Vasco-Da-Gama, rejecting his application under Section 145(2) of the Negotiable Instruments Act, 1881 (NI Act) in Criminal Case No. OA/244/OA/NIA/2019/A. The respondent, Chandrakant Krishna Gawas, had filed a complaint under Section 138 of the NI Act alleging that the petitioner, as a facilitator for obtaining a loan, collected a commission of Rs. 14,00,000/- but failed to arrange the loan and issued a cheque of Rs. 15,47,000/- which was dishonoured. The petitioner sought to cross-examine the complainant's witnesses to challenge the evidence led by the complainant. The Magistrate rejected the application, holding that the petitioner had not shown sufficient grounds. The High Court held that the right to cross-examination under Section 145(2) of the NI Act is a statutory right and cannot be denied arbitrarily. The impugned order was set aside and the matter was remanded to the Magistrate for fresh consideration, directing that the petitioner be permitted to cross-examine the complainant's witnesses. The court emphasized that the accused must be given a fair opportunity to defend himself.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 145(2) - Right to Cross-Examine - The accused has a statutory right to cross-examine the complainant's witnesses under Section 145(2) of the Negotiable Instruments Act, 1881. The Magistrate's rejection of the application without valid reasons amounts to denial of fair trial. Held that the order rejecting the application is set aside and the matter is remanded for fresh consideration (Paras 1-10).
Issue of Consideration
Whether the learned Magistrate was justified in rejecting the petitioner's application under Section 145(2) of the Negotiable Instruments Act, 1881 seeking permission to cross-examine the complainant's witnesses, thereby denying the accused a fair opportunity to defend himself.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 21.02.2023, and remanded the matter to the learned Judicial Magistrate First Class 'A' Court, Vasco-Da-Gama, for fresh consideration. The Magistrate was directed to permit the petitioner to cross-examine the complainant's witnesses and dispose of the application in accordance with law.
Law Points
- Right to cross-examination under Section 145(2) of Negotiable Instruments Act
- 1881
- Inherent powers under Section 482 CrPC
- Supervisory jurisdiction under Article 227 of Constitution of India
Case Details
2023 LawText (BOM) (08) 154
Criminal Writ Petition No. 54 of 2023
Dinesh Naik, Ms. V. Shivolkar for Petitioner; Sudin Usgaonkar, Shukr Usgaonkar for Respondent
Chandrakant Krishna Gawas
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Nature of Litigation
Criminal writ petition challenging rejection of application under Section 145(2) of Negotiable Instruments Act, 1881
Remedy Sought
Petitioner sought to set aside the order dated 21.02.2023 rejecting his application for permission to cross-examine the complainant's witnesses
Filing Reason
The petitioner's application under Section 145(2) of the NI Act was rejected by the learned Magistrate, denying him the right to cross-examine the complainant's witnesses
Previous Decisions
The learned Judicial Magistrate First Class 'A' Court, Vasco-Da-Gama, rejected the application under Section 145(2) of the NI Act vide order dated 21.02.2023
Issues
Whether the learned Magistrate was justified in rejecting the petitioner's application under Section 145(2) of the Negotiable Instruments Act, 1881 seeking permission to cross-examine the complainant's witnesses
Submissions/Arguments
Petitioner argued that the right to cross-examine under Section 145(2) of the NI Act is a statutory right and cannot be denied without valid reasons
Respondent argued that the application was rightly rejected as the petitioner had not shown sufficient grounds
Ratio Decidendi
The right to cross-examine the complainant's witnesses under Section 145(2) of the Negotiable Instruments Act, 1881 is a statutory right of the accused. Denial of such right without valid reasons amounts to violation of principles of natural justice and fair trial. The Magistrate must exercise discretion judiciously and not reject such applications arbitrarily.
Judgment Excerpts
The petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India and inherent powers of this Court under Section 482 of Code of Criminal Procedure.
The petitioner takes exception to order dated 21.02.2023 passed by the learned Judicial Magistrate First Class 'A' Court, Vasco-Da-Gama below Exhibit 45 in Criminal Case No.OA/244/OA/NIA/2019/A rejecting the petitioner’s application under Section 145(2) of the Negotiable Instruments Act.
Procedural History
The respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Court of learned Judicial Magistrate First Class, Vasco. During the trial, the petitioner filed an application under Section 145(2) of the NI Act seeking permission to cross-examine the complainant's witnesses. The learned Magistrate rejected the application vide order dated 21.02.2023. The petitioner then filed the present Criminal Writ Petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 145(2)
- Code of Criminal Procedure, 1973: 482
- Constitution of India: Article 227
