NEGOTIABLE INSTRUMENTS ACT, 1881

Section 145(2) Section 138

Evidence on affidavit - Denial of opportunity for cross-examination of witness - Non-framing of formal notice under section 251 Cr.P.C. by trial Court - Fresh trial, whether required by vitiating entire proceedings

Complaint under section 138 of Negotiable Instruments Act, 1881 was filed for dishonour of the cheque and accused was summoned. Thereafter, both parties sought for mediation, which was failed and accused sought time for filing application under section 145(2) but same was not filed and therefore, opportunity to cross-examine complainant witnesses was closed. Petition was filed by accused seeking quashing of order raising question as to whether non-framing of formal notice under section 251 of Cr.P.C. would vitiate entire proceedings requiring a fresh trial. Held: In terms of section 143, subject to the proviso, as per normal rule, proceedings under section 138 are summary in nature. On appearance of accused, Magistrate is required to explain substance of accusation to accused and ask him whether he would plead guilty or has any defence to make. However, as per mandate of section 251 of Cr.P.C, no formal notice is required to be framed so long as substance of accusation is stated and the accused is asked whether he pleads guilty or intend to lead any defence evidence. Petitioner was found guilty of causing delay in trial for one reason or the other. Petitioner deliberately raised a piecemeal challenge to order with respect to closure of petitioner's right to cross-examine complainant and very same order was challenged for non-framing of a formal notice under section 251 Cr.PC by trial court. Looking at overall conduct of petitioner in delaying the proceedings for one reason or the other, petitions were dismissed with costs of Rs. 10,000 to be paid to complainant.

REFERRED :

FAVOUR : Against the petitioner.

A.Y. :

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