The Punjab and Haryana High Court has reaffirmed that the right to cross-examine a complainant in a cheque dishonour case under Section 138 of the Negotiable Instruments Act is a substantive right essential to a fair trial, even when the accused has delayed proceedings. The Court set aside the trial court’s order closing evidence due to non-appearance, granting one final opportunity for cross-examination subject to costs.
Background & Facts
The Dispute
The respondent, Bijender, filed a complaint under Section 138 of the Negotiable Instruments Act before the Judicial Magistrate First Class, Gurugram, on 05.11.2019, alleging that the petitioner, Ajeet Singh Yadav, issued a cheque for Rs. 1,25,000 which was dishonoured due to insufficient funds. The petitioner appeared as the accused in the proceedings.
Key Facts
- The complaint was filed on 05.11.2019 (NACT No. 51415-2019)
- On 21.08.2024, the Trial Court allowed the petitioner’s application under Section 145(2) of the NI Act, granting him the right to cross-examine the complainant
- The petitioner was given multiple dates to conduct cross-examination: 02.12.2024, 26.05.2025, 28.07.2025, and 15.10.2025
- On each of these dates, the petitioner or his counsel failed to appear
- On 04.04.2025, the Trial Court imposed costs on the petitioner for delay
- On 20.01.2026, the Trial Court closed the complainant’s evidence, citing deliberate delay, and adjourned the matter for defence evidence
- The petitioner filed the present petition under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 on 23.03.2026
Procedural History
- 05.11.2019: Complaint filed under Section 138 NI Act
- 21.08.2024: Trial Court allowed application under Section 145(2) for cross-examination
- 02.12.2024: Petitioner failed to appear for cross-examination
- 26.05.2025: Petitioner failed to appear
- 28.07.2025: Petitioner failed to appear
- 15.10.2025: Petitioner failed to appear
- 04.04.2025: Trial Court imposed costs for delay
- 20.01.2026: Trial Court closed complainant’s evidence and adjourned for defence
- 23.03.2026: Petitioner filed writ petition under Section 528 BNS
Relief Sought
The petitioner sought quashing of the order dated 20.01.2026 and a direction to grant one final opportunity to cross-examine the complainant, subject to appropriate conditions.
The Legal Issue
The central question was whether the right to cross-examine a complainant under Section 138 of the Negotiable Instruments Act can be permanently extinguished due to the accused’s failure to appear on multiple dates, even if the non-appearance is claimed to be due to bona fide reasons.
Arguments Presented
For the Petitioner
Learned counsel argued that the right to cross-examine is a fundamental component of a fair trial under Article 21 of the Constitution and Section 145(2) of the NI Act. He submitted that the petitioner’s non-appearance was not intentional or mala fide but due to genuine personal and logistical difficulties. He contended that the Trial Court’s closure of evidence amounted to a denial of natural justice and that the petitioner should be granted one final opportunity, subject to costs.
For the Respondent
The respondent was not represented, and service was dispensed with by the Court on the ground that the issue was narrow and no prejudice would arise to the respondent.
The Court's Analysis
The Court acknowledged that the petitioner’s conduct demonstrated negligence and a pattern of delay, which had already attracted costs on 04.04.2025. However, it emphasized that the right to cross-examine is not a mere procedural formality but a substantive right essential to testing the credibility of the complainant’s testimony. The Court observed:
"The object of criminal trial is to arrive at the truth and to ensure a fair opportunity to both sides. Denial of cross-examination may result in failure of justice."
The Court distinguished between procedural lapses and the erosion of a core fair trial guarantee. It noted that while the petitioner’s conduct warranted penalisation, it did not justify the permanent deprivation of a statutory and constitutional right. The Court held that the Trial Court’s decision to close evidence without exploring whether the delay was wilful or due to unavoidable circumstances was excessive and contrary to the principles of natural justice.
The Court further relied on the foundational principle that criminal trials must balance efficiency with fairness, and that the accused’s right to confront witnesses cannot be sacrificed merely because of past default, especially when no evidence suggests mala fide intent.
The Verdict
The petition was allowed. The impugned order dated 20.01.2026 was set aside to the limited extent that the petitioner is granted one final and effective opportunity to cross-examine the complainant. The petitioner must pay costs of Rs. 5,000 to the complainant before the Trial Court on the next date of hearing. No further opportunity shall be granted. In case of default, the Trial Court’s order dated 20.01.2026 shall revive automatically. All pending applications are disposed of.
What This Means For Similar Cases
Cross-Examination Is a Non-Negotiable Right
- Practitioners must argue that Section 145(2) of the NI Act guarantees the right to cross-examine, and courts cannot extinguish it due to procedural delays unless there is clear evidence of mala fide intent
- Courts must record reasons before closing evidence, especially when the accused has been granted multiple opportunities
Delay Demands Costs, Not Dismissal
- Failure to appear on scheduled dates warrants imposition of costs, not automatic closure of evidence
- The Court’s directive to pay Rs. 5,000 as costs sets a precedent for proportionate punishment without prejudice to substantive rights
Judicial Discretion Must Be Balanced
- Trial courts must weigh the accused’s conduct against the right to a fair trial before taking drastic steps
- This judgment reinforces that natural justice overrides procedural expediency in criminal proceedings under the NI Act
