High Court of Delhi was dealing with petition filed under Section 482 Cr.pc. on behalf of the petitioners assailing the order date 03.12.2021 passed by the learned M.M., New Delhi, vide which the petitioners’ application under Section 145(2) N.I. Act seeking cross-examination of the complainant witness has been dismissed.
Petitioner’s Contention:
The counsel for the petitioner submitted that the Trial Court had framed notice under Section 251 Cr.P.C., to which the accused pled not guilty. On the same date, an application already filed on 10.09.2021 under Section 145(2) N.I. Act was pressed, however the same was dismissed by the Trial Court without assigning any reason, except for saying that no valid ground of defence had been put forward by the accused. He prays that the application filed on behalf of the accused under Section 145(2) N.I. Act may be allowed, and undertakes that in case the said relief is granted, the accused will not seek any adjournment before the Trial Court in that regard.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the order would show that the Trial Court had gone through the defence put forward in reply to the notice framed under Section 251 Cr.pc., and thus, the same is not liable to be set aside.
HC’s Observations:
After hearing both the sides Court looked into Section 145(2) N.I. Act which reads as under: -
“Evidence on affidavit. - (2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
Court found that a bare perusal of the provision would show that once an application is filed by the accused thereunder, the concerned Court is obliged to summon the person who has given evidence on affidavit in terms of Section 145(1) N.I. Act.
HC relied upon the case of Radhey Shyam Garg v. Naresh Kumar Gupta, where SC held that “The court, however, has no other option but to summon and examine any person who has given evidence on affidavit as to the facts contained therein if an application is filed either by the prosecution or the accused. Section 145 must be read reasonably.”
Court observed that an application under Section 145(2) N.I. Act was filed on behalf of the accused on 10.09.2021. It has been averred that mediation talks were going on between the parties, and on 16.11.2021, the complainant agreed before the Trial Court to supply its statement of account to the accused in furtherance of the negotiations. However, on the next date of hearing the complainant did not provide the statement of account and notice came to be framed against the accused under Section 251 Cr.P.C. Upon pressing of the application filed earlier under Section 145(2) N.I. Act on behalf of the accused, the Trial Court dismissed the same, observing that no valid ground for defence had been made out.
HC Held:
After evaluating submissions made by both the parties the Court held that “the Trial Court committed an error in dismissing the application of the accused, which was filed prior to framing of notice under Section 251 Cr.P.C. and pressed even at the time of framing thereof. The impugned order appears to have been passed in ignorance of the mandate contained in Section 145(2) N.I. Act, which in terms of the aforementioned decisions, obliges the concerned Court to summon a person who has given evidence on affidavit in terms of Section 145(1) N.I. Act if an application is filed by the accused. The petitioners’ application under Section 145(2) N.I. Act filed on 10.09.2021 is allowed.”
Bench: Hon'ble Mr. Justice Manoj Kumar Ohri
Case Title: Century Aluminium Manufacturing Company Ltd. & Anr. v. Hero Fincorp Ltd.
Case Details: CRL.M.C. 3402/2021, CRL.M.A. 20546/2021 and CRL.M.A. 20547/2021
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