Research › Search › Judgment

Bombay High Court · body

2023 DIGILAW 2015 (BOM)

Shantal Kamat v. Milind Ladu Kerkar

2023-10-11

PRAKASH D.NAIK

body2023
JUDGMENT/ORDER 1. The Petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India challenging Order dtd. 17/10/2022 passed by learned Judicial Magistrate First Class, Panaji, Goa, allowing the application preferred by the Respondent under Sec. 145(2) of the Negotiable Instruments Act, 1881 ('N. I. Act', for short). 2. The Petitioner is the original Complainant. The complaint was filed for an offence under Sec. 138 of the Negotiable Instruments Act. It was registered as OA/247/2021/E. The grievance of the Complainant is that the accused was working for the Company M/s. Chrome Business & Trade (I) Pvt. Ltd. The accused was designated as Business Manager. The Company was dealing in the business of offering various schemes wherein the customers can invest in gold with promises of high returns on the investments and the customer was allotted unique Customer Code. The accused appointed the Complainant as authorized agent on behalf of Company and messaged an Agent Code to the Complainant. The accused promised that the Complainant would receive high commissions which would be commensurate to the number of new customers acquired by her. The Company brought several new customers who invested heavily in purchasing gold. The accused subsequently represented that he is focusing on re-investment and the business was down due to pandemic Covid-19 and the accused told the Complainant to encourage existing customers to renew the policies which had crossed maturity date and promised that it would double their profits which would be beneficial to the Complainant. The accused delayed the payment towards customers whose policies had crossed the maturity dates and such customers started complaining to the Company for their payments. The Complainant demanded the amount. The accused made written commitment to pay the amount of Rs.47, 26, 850.00 in instalments. The accused issued a cheque bearing no. 410220 dtd. 26/7/2021 for an amount of Rs.47, 26, 850.00. The Complainant deposited the cheque which was dishonoured. Legal notice dtd. 18/8/2021 was sent to the accused. It was replied by the accused. The accused failed to make the payment. Complaint was filed for an offence under Sec. 138 of the N.I. Act on 13/9/2021. 3. The Complainant tendered affidavit of evidence. The accused preferred an application under Sec. 145(2) of the N. I. Act seeking permission to cross examine the Complainant. The application was opposed by the Complainant by filing reply. The accused failed to make the payment. Complaint was filed for an offence under Sec. 138 of the N.I. Act on 13/9/2021. 3. The Complainant tendered affidavit of evidence. The accused preferred an application under Sec. 145(2) of the N. I. Act seeking permission to cross examine the Complainant. The application was opposed by the Complainant by filing reply. The learned Magistrate allowed the said application vide Order dtd. 17/10/2022. 4. Learned Advocate for the Petitioner submitted that the order passed by the learned Magistrate is contrary to law. The application preferred by the Respondent was cryptic. There was no specific defence. The accused did not provide reasons on what point he intends to cross examine the Complainant. The accused had delayed the proceedings. He did not appear before the Trial Court for long time. The accused did not reply the notice. 5. Learned Advocate for the Petitioner has relied upon the following decisions : (i) Indian Bank Asociation and Ors. vs. Union of India and Ors., (2014) 5 SCC 590 . (ii) Meters and Instruments Private Limited and anr. vs. Kanchan Mehta, (2018) 1 SCC 560 . (iii) Rukmakar @ Bharat Tulshidas Naik vs. Santosh Shaba Gaonkar and anr., WPCR No. 35 of 2019 of this Court decided on 5/4/2019. (iv) Paresh Bandekar vs. Rajaram Satardekar and anr., WPCR No. 24 of 2020 of this Court decided on 24/2/2021. (v) Apolonius Francisco Luis vs. Sahajanand Investments Pvt. Ltd.,. 6. Learned Advocate for the Respondent submitted that there is no infirmity in the impugned Order. The accused cannot be deprived of right to cross-examine. The Respondent had preferred an application under Sec. 145(2) of the N. I. Act and contended that the case is false. The accused be allowed to cross-examine the Complainant so that the truth will come out. In the interest of justice, the accused be allowed to cross-examine the Complainant. It is submitted that the Complainant and the accused were the agents of the Company. The cheque in question is admittedly in respect to the liability to the Customers of the Company. The proceedings under Sec. 138 of N.I. Act, would not lie. The cheque was not issued in respect to the legally enforceable debt or liability. The Petitioner and the Respondents were the agents of Company. 7. The cheque in question is admittedly in respect to the liability to the Customers of the Company. The proceedings under Sec. 138 of N.I. Act, would not lie. The cheque was not issued in respect to the legally enforceable debt or liability. The Petitioner and the Respondents were the agents of Company. 7. Learned Advocate for Respondent has relied upon the following decisions : (i) Jagdeep Singh vs. Ramesh Singh, Cr.MMO No. 215 of 2019 of Himachal Pradesh High Court decided on 28/11/2019. (ii) Rakesh Singh vs. Anil Madanmohan Gulati and anr., 2023 SCC OnLine Bom 1037. (iii) Tarak Arolkar vs. Cirilo Alberto Andrade De Souza, WP No. 391 of 2023 of this Court decided on 14/9/2023. (iv) Anu Sharma vs. Punjab National Bank, Cr. MMO No.216 of 2019 of Himachal Pradesh High Court decided on 7/8/2019. 8. The roznama of the proceedings before the trial Court indicate that the cross-examination of the Complainant was conducted at the instance of the accused. It was partly recorded. Thereafter, the Complainant did not remain present in the Court. The learned Magistrate vide Order dtd. 31/7/2023 closed the evidence of Complainant. 9. The learned Magistrate had allowed the application preferred by the Respondent under Sec. 145(2) of the N. I. Act. Although the reasons assigned by the trial Court may not be happily worded, but in the light of the scope of Sec. 145(2) of the N.I. Act, the accused cannot be deprived of the right to cross-examine the Complainant. It is also pertinent to note that in the present case, the cross-examination was partly recorded. Since the Complainant was not available on several dates of hearing, the evidence was closed. 10. Learned Advocate for the Petitioner has relied upon the decision of the Supreme Court in the case of Indian Bank Asociation & Ors. vs. Union of India & Ors.(supra), wherein the Apex Court had issued directions to the Criminal Courts dealing with Sec. 138 cases to follow those directions for speedy and expeditious disposal of the cases. 11. In the case of Meters and Instruments Private Limited & anr. vs. Kanchan Mehta (supra), the Apex Court was primarily concerned with the issue whether proceedings could be closed if the accused is willing to deposit the cheque amount along with cost and the interest. 11. In the case of Meters and Instruments Private Limited & anr. vs. Kanchan Mehta (supra), the Apex Court was primarily concerned with the issue whether proceedings could be closed if the accused is willing to deposit the cheque amount along with cost and the interest. It was held that the principle of Sec. 258 of Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and the interest is paid and there is no reason to proceed with the punitive aspect. The Court also referred to the provisions of Sec. 143 and 145 of the N. I. Act. It was observed that offence under Sec. 138 of the N.I. Act is primarily a civil ground. The Complainant should give his bank account and if possible email id of the accused. In the summons, it may be indicated that if the accused deposits the amount, he need not appear unless required and proceedings may be closed subject to valid objections by the Complainant. In such a situation, the accused presence may be required unless his presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific questions to the accused at that stage. The decision nowhere contemplates that the application under Sec. 145(2) of the N. I. Act should be filed with specific defence and only in such circumstances, the accused can be permitted to cross examine the Complainant. 12. In the case of Rukmakar @ Bharat Tulshidas Naik vs. Santosh Shaba Gaonkar & anr. (supra), this Court has observed that the accused has an opportunity to set out his defence, when he sends a reply to the statutory notice of the Complainant, the accused can set out the ground in the application seeking leave to crossexamine Complainant and even during the course of the hearing of the application, and in answer to the questions which may be posed by the Court, he can disclose such grounds. 13. In the case of Paresh Bandekar vs. Rajaram Satardekar & anr. (supra), it was observed that the accused did not reply to the notice which was an opportunity for him to set out his defence. 13. In the case of Paresh Bandekar vs. Rajaram Satardekar & anr. (supra), it was observed that the accused did not reply to the notice which was an opportunity for him to set out his defence. While filing application seeking leave to cross-examine the accused as an opportunity to set out the grounds of defence and even during the arguments, before the Magistrate, the accused can answer to the question that may be posed by the Court. 14. In the case of Apolonius Francisco Luis vs. Sahajanand Investments Pvt. Ltd. (supra), similar view was expressed by this Court after referring to several decision of the Apex Court and this Court. 15. In the case of Mandvi Co-op Bank Ltd. vs. Nimesh B. Thakore, (2010) 3 SCC 83 . it was observed that it is beyond doubt that in the event an application is made by the accused, the Court would be obliged to summon the person giving evidence of affidavit in terms of Sec. 145(1) of N.I. Act, without having any discussion in the matter. 16. In the case of Rakesh Singh vs. Anil Madanmohan Gulati & anr. (supra), this Court had observed that the accused had an opportunity to lead defence evidence and rebut the presumption, if any, which does not mean that the valuable right of the accused to cross-examine the Complainant under Sec. 145(2) of the N. I. Act can be brushed aside. The decision in the case of Meters and Instruments Private Limited & anr. vs. Kanchan Mehta (supra), has not diluted the proposition laid down in Mandvi Co-op Bank Ltd. vs. Nimesh B. Thakore (supra), that the accused is fully protected and under sub-sec. (2) of Sec. 45 is absolute and unqualified right to have the examination. The Supreme Court has not curtailed the right of the accused to have the Complainant summoned for cross examination. 17. In the present case, the learned Magistrate has rightly allowed the application under Sec. 145(2) of the N.I. Act. In fact, the cross-examination had proceeded and after recording it partly, the Complainant did not appear and the learned Magistrate had closed the Complainant's evidence. 18. Considering the aforesaid factual aspects, I do not find any reason to interfere in the impugned Order. ORDER (i) Criminal Writ Petition No.227 of 2023 is dismissed. (ii) The Respondent-accused shall proceed with the cross-examination of the Complainant. (iii) The Order dtd. 18. Considering the aforesaid factual aspects, I do not find any reason to interfere in the impugned Order. ORDER (i) Criminal Writ Petition No.227 of 2023 is dismissed. (ii) The Respondent-accused shall proceed with the cross-examination of the Complainant. (iii) The Order dtd. 31/7/2023 passed by the learned Magistrate directing that the Complainant's evidence stands closed, is set aside. (iv) The Complainant shall make herself available for cross-examination and without delay, the Advocate for the accused shall proceed with the cross-examination of the Complainant. (v) Criminal Writ Petition stands disposed of.