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Judgment
Rule. Rule made returnable forthwith. Heard finally by consent of parties.
Petitioner impugns order dated 10.03.2026 passed by Judicial Magistrate, First Class, ‘B’ Court at Ponda, Goa in OA/316/2025/B whereby Petitioner’s application seeking permission to cross-examine Respondent (original Complainant) came to be rejected. For sake of convenience, hereinafter, Petitioner shall be referred to as Accused and Respondent shall be referred to as Complainant, as they appear in Criminal Complaint before Judicial Magistrate First Class at Ponda.
Complainant instituted private complaint under Section 138 of Negotiable Instruments Act, 1881 (NI Act for short) against Accused. In a nutshell, it is the contention of Complainant that Accused was in urgent need of money for his personal use. Due to cordial relationship with Complainant, Accused requested payment of an amount of ₹17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand only) by way of a hand loan with assurance to return the same on or before 31.12.2024. Accordingly, affidavit was executed before Notary. Accused issued cheque dated 01.03.2025 drawn on ICICI Bank towards repayment of amount. On presentation, the said cheque was dishonoured with reason “insufficient funds”. Complainant served a Demand Notice dated 18.03.2025 in terms of Section 138(b) of NI Act, 1881. Accused responded to said notice and denied the contentions therein. Eventually, Complainant filed a complaint before the Magistrate. Learned Magistrate issued process vide order dated 15.07.2025. Accused, on appearance, filed an application in terms of Section 145(2) of NI Act seeking permission to cross-examine Complainant and his witnesses. However, by impugned order dated 10.03.2026, learned Magistrate rejected the application observing that the affidavit produced by the Complainant shows the existence of legal liabilities of Accused and Accused has also admitted taking money and repaying part of the amount, hence evasive denial of Complainant’s case by Accused would not give rise to the substantive defence.
Mr. Shivan Desai, learned Advocate for Petitioner/Accused, would submit that Accused took specific plea that the Accused never approached Complainant to lend the sum of ₹17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand only). He had never given cheque towards payment of the sum of ₹17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand only). Therefore, there is no legally enforceable debt. The blank signed cheques were obtained by Complainant along with affidavit under coercive and false pretext of promising financial help to Accused. The cheque in question was given as a security in order to obtain financial help. There is no statement in the complaint as to manner of the payment of ₹17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand only) to the Accused. There is no supporting document depicting transfer of the amount in favour of Accused.
Per contra, Mr. Eeshan Usapkar, learned Advocate appearing for Respondent/Complainant supports the impugned order by inviting attention of this Court to the reply of Accused to the Demand Notice. He would urge that Accused cannot deny transaction in question, however, trying to put up a false and vague defence.
Having considered submissions advanced by learned Advocates appearing for respective parties, only issue that requires consideration is whether Accused has made out a case to permit him to cross-examine Complainant and his witnesses in terms of Section 145 of the NI Act, which provides that evidence of Complainant may be given by him on affidavit and may, subject to all those exceptions, be read in evidence in any inquiry, trial or other proceeding. Sub-clause (2) of Section 145 provides that Court may if it thinks fit, on application of the prosecution or Accused, summon and examine any person giving evidence on affidavit as to facts contained therein.
In case of Mandvi Cooperative Bank Ltd. V/s. Nimesh B. Thakore1, the Supreme Court observed in paragraph no.16 as under:
“Section 143 makes it possible for the complaints under Section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily. It is, however, significant that the procedure of summary trials is adopted under Section 143 subject to the qualification “as far as possible”, thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non-obstante clause and the expression “as far as possible” used in Section 143 coupled with the non-obstante clause in Section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Section 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under Subsection (2) of Section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination.”
Similarly, in case of Rakesh Singh V/s. Anil Madanmohan Gulati & Anr. (Criminal Writ Petitions No.34 and 35 of 2023 decided on 09.05.2023), this Court, while elaborating exposition of law laid down by Supreme Court in case of Mandvi Cooperative Bank Ltd. (supra) further observed that:
“The trial Court, in my opinion, committed error in observing that the petitioner is silent on the specific ground of defence or point on which he wishes to cross examine the complainant. It may be that the petitioner has an opportunity to lead defence evidence and rebut the presumption if any, however, that does not mean that the valuable right of the petitioner to cross examine the complainant which he is entitled to under Section 145(2) of the NI Act can be lightly brushed aside.”
Thereafter in case of Narayan Shivdas Kadam V/s. Shriram Transport Finance Company Limited2, this Court observed that accused has an absolute and unqualified right to have complainant and his witness summoned for cross-examination. It is not necessary for Court to delve deep into merits of defence which is set up by accused. The purpose of disclosing defence is not to find out whether any details are given or to reject it at the threshold thereby curtailing such right of accused. In paragraph no.34, it has been observed that main intention of legislature incorporated under Section 145(2) of N.I. Act is to grant an opportunity to accused, in desirable cases, wherein he shows or demonstrates before the Magistrate that there is probable defence which he wants to produce before Court by way of cross-examination of complainant. Such opportunity cannot be taken away from accused if he satisfies Magistrate about probable defence.
In case of K. Narsimulu (supra) this Court in reference to law down in case of Mandvi Cooperative Bank Ltd. (supra) observed that Section 145(2) of N.I. Act protects right of accused to have complainant and his witnesses cross-examine and he has absolute and unqualified right to have complainant and any or all of his witnesses summoned for cross-examination.
In case of Apolonius Francisco Luis V/s. Sahajanand Investments Pvt. Ltd. (Criminal Writ Petition No.838/2021 decided on 12.09.2022), this Court found that cryptic and casual defence was employed in application filed by accused and, therefore, he was declined opportunity to cross-examination.
It is well settled that Section 145(2) of NI Act cannot be treated as an absolute bar to grant opportunity to Accused in desirable cases. However, it is for Accused to demonstrate before Magistrate that he has probable defence which he wants to bring before the Court by way of cross-examination of Complainant. If Magistrate is satisfied about the probable defence, permission needs to be granted.
In present case, Complainant is relying upon a cheque of ₹17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand only) issued by the Accused and two affidavits acknowledging the transaction. However, the fact remains that in reply to Demand Notice, Accused denied the transaction particularly the legally enforceable liability towards payment of debt. In the application filed under Section 145(2), Accused has stated that the blank cheque in question and the affidavits were obtained by coercion and sought to be misutilised against him. Complainant has not given any material to demonstrate actual payment of ₹17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand only) made to Accused in any manner, even purpose of such payment is not specified.
In this backdrop, the question as to whether there was legally enforceable debt would stand as the central point of the adjudication of the complaint. Hence, in light of law laid down by the Supreme Court in case of Mandvi Cooperative Bank Ltd. (supra) and observations of this Court in case of Rakesh Singh and K. Narsimulu (supra), this Court finds that the right of Accused to cross-examine Complainant and his witnesses cannot be curtailed.
Although, learned Advocate appearing for Complainant relied upon the observations of this Court in case of Mahendra Harilal Verma V/s. Muktamala Vinod Fondvekar in Criminal Writ Petition No.24/2025 decided on 23.06.2026 and the judgment of this Court in case of Deepak Surlakar V/s. Dominica A. Rodrigues3 this Court finds that in facts of the present case, Accused cannot draw any mileage from observations made therein. The plea taken by Accused cannot be termed as vague or afterthought in light of specific reply to Demand Notice and statements made in the application under Section 145 of NI Act.
In the result, the impugned order cannot be countenanced in law. Writ Petition is allowed in terms of prayer clause A, which reads as under:
(a)Issue a writ of Certiorari or writ in nature of the Certiorari quashing and setting aside the order dated 10/03/2026 passed by Judicial Magistrate First Class, B Court at Ponda, Goa in OA/316/2025/B and consequently allow the Application filed by the Petitioner for cross-examining the Respondent (original complainant).
In view of disposal of Writ Petition, nothing survives in Criminal Misc. Application No.15 of 2026, which also stands disposed of.