Kamal Nilkant NaikversusVPK Urban Co operative Credit Society Ltd

2026:BHC-GOA:1848
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                          IN THE HIGH COURT OF BOMBAY AT GOA
                          CRIMINAL WRIT PETITION NO.62 OF 2025

               MRS. KAMAL NILKANTH NAIK
               Aged 60 years, Indian National
               resident of H. No.106/A, Haveli,
               Curti, Ponda, Goa 403401.                        ..Petitioner

                     Versus

               VPK URBAN CO-OPERATIVE CREDIT SOCIETY
               Having its head office at Mardol,
               Ponda, Goa, and Branch at Curti,
               Ponda, Goa, represented herein by
               its authorised officer, Shri. Siddhesh
               Thanu Madkaikar, aged 41 years,
               Indian National, resident of H. No.
               117, Dutale Madkaim, Ponda – Goa.              ..Respondent
                                                    …
               Mr. Vibhav Amonkar with Mr. Omkar Bhave, Advocates for Petitioner.
               Mr. Jatin Ramaiya with Mr. Omkar Parab, Advocate for Respondent.
                                                    …
                                             CORAM : S. G. CHAPALGAONKAR, J.

                RESERVED ON   : 19th AUGUST, 2026.
                PRONOUNCED ON : 11th SEPTEMBER, 2026.

               JUDGMENT:-

               1.    Rule. Rule made returnable forthwith. With consent of parties,

               matter is heard finally at admission stage.

               2.    The present petitioner impugns order dated 02.05.2023 passed by

               Judicial Magistrate First Class, ‘B’ Court at Ponda in Criminal Case

               No.352/OA/NIA/2020/B, whereby petitioner’s application filed under

               Section 145(2) of Negotiable Instrument Act, 1881 (hereinafter referred

               as ‘N.I. Act’) seeking permission to cross-examine complainant came to

               be rejected.
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3.    The respondent (orig. complainant) instituted proceeding under

Section 138 of N.I. Act alleging that petitioner availed of a loan of

Rs.45,00,000/- from respondent and willfully and intentionally

defaulted in making repayment as agreed.         It is further case of

respondent that petitioner had issued Cheque No.152053 for amount of

Rs.24,48,000/- dated 04.08.2020 drawn on Canara Bank, Curti Branch

as part payment of said loan.       The said cheque dishonored on

presentation. The petitioner failed to comply demand notice, as such,

committed an offence under Section 138 of N.I. Act.


4.    The petitioner filed application under Section 145(2) of N.I. Act

disclosing specific defences taken by her.       The application was

contested by respondent.     The Trial Court after considering rival

submissions, passed impugned order dated 02.05.2023 rejecting

petitioner’s application.   Aggrieved petitioner preferred Criminal

Revision Application No.60/2024 before Sessions Court.          However,

same has been rejected vide order dated 23.05.2025 observing that it is

not maintainable.


5.    Mr. Vibhav Amonkar, learned Advocate appearing for petitioner

would submit that Section 145(2) of N.I. Act requires accused to

demonstrate probable grounds of defence. The petitioner has disclosed

sufficient grounds of probable defences in her application. However,

Trial Court failed to appreciate probable grounds of defences as well as
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prepositions of law flowing from series of judgment of Supreme Court

as well as this Court. He would, therefore, urge to allow Writ Petition

by setting aside impugned order and permit petitioner to conduct cross-

examination of complainant and/or his witnesses. In support of his

contentions, he relies upon observations of Supreme Court as well as

High Court in cases of Indian Bank Association and Ors. Vs. Union of

India & Ors.1, M/s. Meters and Instruments Private Limited & Anr.

Vs. Kanchan Mehta2, Nizam Shamshuddin Ladji Vs. VPK Urban Co-

operative Credit Society Ltd.3, Rakesh Singh Vs. Anil Madanmohan

Gulati & Anr. (Criminal Writ Petitions No.34 and 35 of 2023 decided

on 09.05.2023), Mr. Kishor Biradmal Bhandari Vs. Mr. Chandrakant

Krishna Gawas (Criminal Writ Petition No.54/2023 decided on

23.08.2023), Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore 4,

K. Narsimulu Vs. Naguesh C. Dandi5.


6.       Per contra, Mr. Jatin Ramaiya, learned Advocate appearing for

respondent/complainant justifies impugned order. He would submit that

it is well settled that only when accused demonstrates probable defence

before Magistrate, which he wants to put forth before by way of cross-

examination of complainant and Magistrate records his satisfaction

about availability of defence, opportunity to cross-examine complainant

can be given. However, in present case petitioner’s application does not
1    2014 5 SCC 590.
2    (2018) 1 SCC 560.
3    2024 SCC OnLine Bom 4850.
4    AIR 2010 Supreme Court 1402.
5    2010 Mh.L.J. (4) 220.
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disclose any probable defence. The application is full of vague and bald

statements without crystallizing nature of defence to be put into service.

The Trial Court has applied mind to averments in application and found

no substance in application under Section 45(2) N.I Act. The Trial

Court has further observed that Bank Cheque Return Memo gives only

reason as ‘insufficient funds’. The signatures on cheques were never

doubted. In support of his contentions he relies upon observations of

Supreme Court in cases of Mandvi Cooperative Bank Ltd. and Meters

and Instruments Private Limited & Anr. (supra).


7.    Having considered submissions advanced by learned Advocates

appearing for respective parties, in light of exposition of law on the

point of right of accused to cross-examine complainant or his witnesses

in terms of Section 145(2) of N.I. Act, this Court finds that Section 145

of N.I. Act provides that evidence of complainant may be given by him

on affidavit and may, subject to all just exceptions be read in evidence

in any enquiry, trial or other proceeding. The sub-clause (2) of Section

145 stipulates that Court may, if it thinks fit, and shall, on application of

the prosecution or accused, summon and examine any person giving

evidence on affidavit as to facts contained therein.         The aforesaid

provision has been interpreted in catena of decision rendered by

Supreme Court as well as this Court.
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8.    In case of Mandvi Cooperative Bank Ltd. (supra), 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 Sub-
        section (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.”


9.    Similarly, in case of Rakesh Singh (supra), 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.”
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10.     Thereafter in case of Narayan Shivdas Kadam s/o Shivdas

Kadam Vs. Shriram Transport Finance Company Limited 6, 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.


11.     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.



6   2024 (2) Mh.L.J. 147.
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12.   In case of Apolonius Francisco Luis Vs. 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.


13.   In light of aforesaid exposition of law, in present case, if contents

of petitioner’s application filed under Section 145(2) of N.I. Act are

scrutinized, it is discernible that petitioner has disputed signature and

writing on cheque alleging that same is misused by complainant and

cannot be enforced against accused as per document titled as agreement

for loan. According to petitioner, there is no legally enforceable debt.

The complainant illegally possessed cheque in dispute which is required

to be sent for handwriting expert opinion under Section 45 of Indian

Evidence Act.     The aforesaid statements of defence appearing in

petitioner’s application would be normally sufficient to make out

probable defence. However, impugned order records otherwise.


14.   This Court finds that Trial Court as well as Sessions Court cannot

be justified in holding that defences put forth by petitioner are not

sufficient to make out case to grant permission of cross-examination of

complainant or his witnesses. This Court observes that Trial Court

unnecessarily delved deep into defence while testing its credibility in

light of material tendered by complainant and made erroneous
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                           observation that there is no denial of signature on cheques or legally

                           enforceable debt. The Court may be justified in rejecting prayer under

                           Section 145(2) of Act, only when material on record is sufficient to hold

                           that issuance of cheque, signatures thereon and legally enforceable debt

                           cannot be disputed by accused and application of accused seeking

                           permission for cross-examination is too vague to make out plausible

                           defence to be put forth by way of effective cross-examination during

                           trial. In light of aforesaid legal and factual backdrop, this Court finds

                           that impugned orders cannot be sustained in law.


                           15.      In result, Writ Petition succeeds and allowed in terms of prayer

                           Clause (A).


                           16.      Rule is made absolute in above terms.


                                                                    (S. G. CHAPALGAONKAR)
                                                                             JUDGE
                           Devendra/September-2026




Signed by: TARI AMRUT NAGESH
Designation: Private Secretary
Date: 12/09/2026 13:11:26