Dismissed

Smt. Pankojini Das v. Anil Kumar Das

Chhattisgarh HC12 Dec 2024CRMP/2133/2019

Case brief

AI extract

What is this about?

Complainant sought to bar cross-examination of her witnesses in a cheque dishonour case because the accused had not applied under Section 145(2) NI Act. Both courts below held the provision discretionary. The High Court agreed, found no illegality, dismissed the petition and vacated the interim order.

What the court decided

AI extract

Smt. Pankojini Das Vs Anil Kumar Das — Cheque Dishonour | Chhattisgarh HC (2024)

2024:CGHC:49299

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 2133 of 2019

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1 - Smt. Pankojini Das W/o Shri R. B. Das Aged About 62 Years R/o J-78, Sector-2, Shanker Nagar, Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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... Applicant

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versus

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1 - Anil Kumar Das S/o Shri Banmali Das Aged About 46 Years R/o Flat No. 110, Badri Prasad Apartment, Near Ganpati Hotel, Post/p. S. Bargarh, District Bargarh Odisha 768028, District : Bargarh *, Orissa

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... Respondent

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For Petitioner : Ms. Palak Dwivedi, Advocate on behalf of Ms. Aditi Singhvi, Advocate.

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For Respondent : None. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board

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13.12.2024

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This petition has been filed under Section 482 of the Cr.P.C. assailing order dated 15.05.2019 passed by the learned Third Additional Sessions Judge, Raipur (C.G.) in Criminal Revision No. 209/2019 arising out of order dated 22.02.2019 passed by the learned Judicial Magistrate First Class, Raipur (C.G.) in Criminal Case No. 981/2016 by which the objection raised by the petitioner/complainant regarding objection raised by the accused regarding cross-examination of complainant witnesses on the count that the accused have not moved any application under Section 145(2) of the Negotiable Instruction Act, 1881 (for short “the NI Act”), has been rejected by recording its finding that as per Section 145 (2) of the NI Act, the provisions are not mandatory.

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Digitally signed by ARUN ARUN KUMAR KUMAR DEWANGAN DEWANGAN Date: 2024.12.20 13:50:09 +0530

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The brief fact as reflected from record is that the petitioner/complainant has filed complaint under Section 138 of the NI Act against the respondent/accused as the cheque issued by him was dishonoured due to insufficient funds. It is also case of the complainant that the complainant had given Rs. 12 lac to the respondent for purchasing a piece of land and other business transactions. The respondent issued a cheque bearing No. 036888 dated 27.10.2016 for amount of Rs. 10 lacs in favour of the petitioner. The petitioner deposited the same on 10.02.2016 which was returned dishonoured due to insufficient funds. Thereafter, the petitioner sent a legal notice to the respondent which was received by him on 20.02.2016 even after that, amount was not paid to the complainant, therefore, he filed a complaint case under Section 138 of the NI Act bearing Criminal Case No. 981/2016 before the learned Judicial Magistrate First Class, Raipur. During pendency of the proceeding before the trial Court, the complainant moved an application on 23.07.2018 to prevent the respondent to cross-examine the complainant witnesses as the accused has not filed any application under Section 145 (2) of the NI Act before evidence of the complainant witness was adduced.

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The respondent/accused has filed reply contending that the provisions of Section 145 (2) of the NI Act is not mandatory it is discretionary and prayed for rejection of the application.

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Learned trial Court vide order dated 22.02.2019 has rejected the same. Against the rejection, the complainant has preferred revision under Section 397 read with Section 399 of the Cr.P.C. before the learned Third Additional District Judge, Raipur bearing Criminal Revision No. 209/2019 which has also been rejected vide order dated 15.05.2019.

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Hence, this petition has been preferred by the petitioner assailing the order passed by the learned courts below.

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Learned counsel for the petitioner would submit that the learned trial Courts have failed to appreciate the provisions of Section 145 (2) of the NI Act is mandatory in nature as the accused has to move an application to cross-examine the complainant and would pray for setting aside the orders passed by the learned Courts below. To substantiate this submission, she would refer to the judgment rendered by Hon’ble the Supreme Court in case of Indian Bank Assn. Vs. Union of India , reported in (2014) 5 SCC 590 .

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I have heard learned counsel for the petitioner and perused the documents place on record with utmost satisfaction.

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From perusal of record, it is quite vivid that the application filed by the complainant under Section 145 (2) of the NI Act was rejected and fixed the case for 22.02.2019 for cross-examination against that a revision was also preferred by the petitioner which has also been rejected by the revisional Court by recording its finding that as per Section 145 (2) of the NI Act, the word ‘may’ has been used which cannot be considered as ‘shall’. As such, these provisions are not mandatory in nature but are directive in nature. For better understanding the provisions, it is expedient for this Court to extract Section 145 of the NI Act which reads as under:-

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“ Section 145. Evidence on affidavit .— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

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(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.”

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From perusal of Section 145 (2) of the NI Act, it is clear that it is not mandatory provision, therefore, both the Courts below have not committed any illegality in rejecting the application filed by the petitioner. In view of the above, the instant petition is liable to be dismissed. Accordingly, it is dismissed.

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The interim order passed by this Court on 09.01.2020 stands vacated and the trial Court is directed to proceed with the trial.

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A copy of this order be sent to the concerned courts for onward compliance.

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Sd/(Narendra Kumar Vyas) Judge

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Arun

Smt. Pankojini Das v. Anil Kumar Das

Case brief

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Smt. Pankojini Das v. Anil Kumar Das

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