by Introduction
The Negotiable Instruments Act, 1881, is a crucial piece of legislation governing transactions involving negotiable instruments such as cheques, promissory notes, and bills of exchange in India. One of the key provisions under this Act is Section 138, which deals with the dishonor of cheques due to insufficient funds, among other reasons. When a cheque is dishonored, the payee has the right to initiate legal proceedings against the drawer of the cheque.
During these proceedings, Section 145 of the Negotiable Instruments Act allows the complainant to present their evidence through an affidavit. However, the accused has the right to cross-examine the complainant to ensure a fair trial. Section 145(2) specifically provides for the accused’s right to apply for the complainant’s cross-examination. Here’s a step-by-step guide on how to apply to the court under Section 145(2) for this purpose:
Step 1: Understand the Provision
Before you proceed, it’s essential to have a clear understanding of Section 145(2). It states that the court may, on an application made by the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. This means that the accused can request the court to allow them to cross-examine the complainant or any witness who has given their testimony through an affidavit.
Step 2: Prepare the Application
Drafting a formal application to the court is the first procedural step. Here are the key elements to include in your application:
- Title of the Case: Mention the title of the case, including the names of the parties involved and the case number.
- Court Details: Specify the name of the court where the case is being heard.
- Application Under Section 145(2): Clearly state that the application is being made under Section 145(2) of the Negotiable Instruments Act.
- Reason for Cross-Examination: Provide a detailed and valid reason why the cross-examination is necessary. This could be to challenge the credibility of the evidence presented through the affidavit, to bring out the truth, or to clarify certain points.
- Prayer Clause: Conclude with a prayer clause requesting the court to summon the complainant or witness for cross-examination.
Step 3: Supporting Affidavit
Along with the application, it’s advisable to submit a supporting affidavit. This affidavit should:
- Reiterate the facts mentioned in the application.
- Swear that the contents of the application are true to the best of your knowledge and belief.
- Be signed and notarized.
Step 4: Filing the Application
Submit the application and the supporting affidavit to the court where the case is being heard. Ensure you:
- Pay the requisite court fee, if applicable.
- Obtain a date for the hearing of your application from the court registry.
Step 5: Serving Notice to the Opposite Party
After filing the application, serve a copy of the application and the supporting affidavit to the opposite party (the complainant). This ensures that the complainant is aware of your application and can prepare for the hearing.
Step 6: Hearing on the Application
Attend the hearing on the specified date. During the hearing, present your arguments clearly and succinctly, emphasizing the necessity of cross-examining the complainant or the witness. Be prepared to respond to any questions or objections raised by the complainant’s counsel.
Step 7: Court’s Decision
The court will consider your application and the arguments presented by both parties. If the court is convinced of the need for cross-examination, it will pass an order summoning the complainant or witness for cross-examination.
Step 8: Conducting the Cross-Examination
Once the court has granted your application, prepare thoroughly for the cross-examination. Focus on areas that will help you challenge the evidence presented against you and highlight inconsistencies or inaccuracies.
Conclusion
Applying to the court under Section 145(2) of the Negotiable Instruments Act for cross-examination of the complainant or witness is a crucial right of the accused. It ensures a fair trial and provides an opportunity to challenge the evidence presented through affidavits. By following the steps outlined above, you can effectively exercise this right and enhance your defense strategy in cases involving dishonor of cheques.
