How to Draft an Application Under Section 145(2) of the Negotiable Instruments Act, 1881 Author: Abhishek Jat, Advocate

 

How to Draft an Application Under Section 145(2) of the Negotiable Instruments Act, 1881

Author: Abhishek Jat, Advocate

 

Introduction

The Negotiable Instruments Act, 1881 ("NI Act") provides a structured legal framework for addressing disputes related to dishonored negotiable instruments such as cheques. One of the key provisions under this Act is Section 145, which permits the use of evidence by affidavit. More specifically, Section 145(2) ensures that the accused has the right to cross-examine the complainant and witnesses whose evidence has been tendered by affidavit. This procedural safeguard is critical in cases involving Section 138 of the NI Act, which deals with dishonor of cheques due to insufficient funds or other reasons.

This article provides a comprehensive understanding of Section 145(2) and a structured approach to drafting an application seeking cross-examination of the complainant. Additionally, a case study is discussed to highlight its practical implications.

Understanding Section 145 of the NI Act

Section 145 was inserted in the NI Act through the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, to expedite cheque dishonor cases. The section states:

1. Section 145(1): The complainant’s evidence in a proceeding under Section 138 can be presented in the form of an affidavit.
2. Section 145(2): The Court may, at its discretion, or shall, upon an application by either the prosecution or the accused, summon and examine any person who has given evidence by affidavit.

The essence of Section 145(2) lies in ensuring that the accused is not deprived of the fundamental right to challenge and verify the veracity of the complainant’s claims through cross-examination. This right plays a crucial role in maintaining the principles of natural justice.

Importance of Filing an Application Under Section 145(2)

In cases of cheque dishonor, the complainant presents their evidence in the form of an affidavit at the pre-summoning stage. Once summons is issued, the accused must promptly move an application under Section 145(2) to exercise their right to cross-examine the complainant. The significance of this application includes:

• Assessing Credibility: Cross-examination allows the accused to scrutinize the complainant’s statements and identify inconsistencies.
• Exposing Fabricated Evidence: If the complainant has misused a cheque or made false claims, cross-examination helps unveil the truth.
• Ensuring Fair Trial: Denial of cross-examination could weaken the defence and lead to an unfair conviction.
• Legal Consequences of Non-Filing: Failure to move such an application results in the accused losing the right to challenge the affidavit evidence, which can be detrimental to the case.

Case Illustration: Anu Products Ltd. v. Mahavir Prasad Verma

A legal aid case before the Judicial Magistrate First Class (NI Act) – 07 (Central), Tis Hazari Courts, demonstrates the importance of Section 145(2). In Ct. Case No. 14934/2018, the accused filed an application under this section, seeking permission to cross-examine the complainant. The defence contended that the cheque in question was originally issued as a security deposit and was later misused by the complainant. The application emphasized that the cheque was neither issued in discharge of any legally enforceable debt nor presented with the accused’s knowledge.

This case highlights how Section 145(2) serves as a crucial defence mechanism in cheque dishonor cases, allowing the accused to challenge wrongful allegations effectively.

Drafting an Application Under Section 145(2)

A well-drafted application under Section 145(2) should be structured as follows:

1. Title and Case Details: Clearly mention the name of the Court, case number, and parties involved.
2. Background: Provide a brief summary of the case, emphasizing the issuance of the cheque and subsequent dishonor.
3. Legal Basis: Cite Section 145(2) of the NI Act and explain the necessity of cross-examination.
4. Grounds for the Application: Highlight key reasons why cross-examination is essential, such as inconsistencies in the complainant’s affidavit.
5. Prayer Clause: Request the Court to permit cross-examination in the interest of justice.
6. Verification and Signature: End with a verification statement and signature of the applicant and advocate.

Legal References

• Section 138 & Section 145, Negotiable Instruments Act, 1881
• Indian Evidence Act, 1872 – Right to Cross-Examine (Section 137 & 138)
• K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 – Landmark case interpreting cheque dishonor liability.
• M/s. Mandvi Co-op Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83 – Discussed evidentiary value of affidavits under Section 145 of NI Act.
• Indian Bank Association v. Union of India (2014) 5 SCC 590 – Guidelines for speedy disposal of cheque dishonor cases.

Conclusion

The right to cross-examine under Section 145(2) of the NI Act is an essential safeguard that ensures fairness in cheque dishonor cases. By effectively drafting and presenting an application under this section, the accused can challenge the allegations and build a strong defence. Timely invocation of this right can significantly impact the outcome of the case, preventing wrongful convictions.