When a trial court rejected an application filed by accused under Section-145(2) NI Act holding that there was no good reason for allowing cross examination of complainant, the High Court set aside the same opining that there is not even a necessity to assign any reason in such application.
The order is passed by Justice Sandeep Sharma in the case titled Jagdeep Singh vs Ramesh Singh on 28.11.2019.
High Court quoted from its earlier judgment as under:
"In the case at hand, application under S.145(2) came to be filed on behalf of the accused, seeking therein permission to cross-examine the accused with regard to contents contained in the affidavit tendered by him in evidence. But, as has been taken note herein above, application filed by accused came to be dismissed on the ground that the accused has not mentioned as to what was legally due from him to the Bank or what amount mentioned in the cheque was not legally recoverable from him at the relevant time, which reasoning given by learned Court below does not appear to be plausible, in view of the specific stand taken by accused in his application filed under S.145 (2), wherein he has stated that the accused issued blank cheque as security to the complainant, but complainant filled up wrong amount in the said cheque and subsequently concocted a false story with a view to grab money from the accused. Accused specifically mentioned in the application that he wants to cross-examine complainant's witnesses, who have given evidence on affidavit to protect his interest as well as to bring truth before the court.
Having carefully perused aforesaid plea raised by accused in the application, this court is not in agreement with the findings recorded by learned Court below, while passing impugned order that the defence plea raised by the accused is neither substantial nor specific. Accused has specifically taken a plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant, as such, accused is well within his right to cross- examine the complainant and its witnesses, specifically on the aforesaid points. Moreover, as has been observed herein above, a careful perusal of the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/re- examination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf.
Leaving everything aside, no prejudice, whatsoever, would be caused to the complainant, in case, complainant and its witnesses are cross-examined on the specific points, taken note herein above, rather, this would help the court below to effectively adjudicate upon the controversy inter se parties".
Then High Court proceeded to set aside the order of trial court by observing as under:
"In the aforesaid judgment, this court has specifically ruled that the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/re-examination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf, as such, order passed by learned Court below, rejecting the application of the accused for examination/cross-examination of the complainant is against the provisions of S.145(2) and deserves to be rectified by this Court. Moreover, no prejudice, whatsoever, would be caused to the complainant, in case complainant and/or his witnesses are examined/cross-examined, rather, this would enable court below to render proper adjudication of the controversy inter se parties.
Consequently, in view of detailed discussion made herein above, present petition is allowed. Order dated 22.1.2019 passed by learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh in Case No. 270 of 2015 is set aside. Application moved by the accused under S.145(2) of the Act is allowed. Learned Court below is directed to fix a date for examination/cross-examination of the complainant/witnesses of the complainant".
Read the Order here:
