The Allahabad 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 not a mere formality but a fundamental safeguard of natural justice. Denial of this right, especially after summoning and before proceeding to final arguments, renders the trial fundamentally flawed. The Court stayed a non-bailable warrant issued without prior opportunity for cross-examination and mandated a single-day examination with cost imposition.
Background & Facts
The Dispute
Three separate applications were filed by Mohammad Taiyab @ Mohd. Tayyab and Mohammad Riyaz challenging orders passed by the Additional Court No. 4, Lucknow in three distinct complaints under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. The core grievance was the closure of the opportunity to cross-examine the complainant (PW-1) and the subsequent issuance of a non-bailable warrant without any prior bailable warrant.
Key Facts
- Complaint Case No. 42843 of 2024 (against Mohammad Taiyab) was filed on 09.04.2024 under Section 138 NI Act
- Summoning order was issued on 25.09.2024
- A related application under Section 483 CrPC (No. 658 of 2025) was filed by the complainant seeking expeditious disposal, disposed of on 22.08.2025 with direction to the Trial Court to proceed day-to-day
- Cross-examination of PW-1 was scheduled for 24.09.2025, then adjourned to 08.10.2025, then to 04.11.2025
- On 11.11.2025, the Trial Court closed the opportunity for cross-examination
- The order of 11.11.2025 was recalled on 18.11.2025, with the Court noting possibility of compromise
- Further adjournments occurred on 25.11.2025, 29.11.2025, and 09.12.2025
- Cross-examination was again listed on 07.02.2026, adjourned to 11.02.2026, then to 21.02.2026
- On 07.03.2026, the Trial Court finally closed the opportunity for cross-examination
- On 28.04.2026, a non-bailable warrant was issued against the applicant without any prior bailable warrant being issued
- The case was fixed for recording of statement under Section 313 CrPC as of the date of the High Court hearing
Procedural History
- 09.04.2024: Complaint filed under Section 138 NI Act
- 25.09.2024: Summoning order issued
- 22.08.2025: High Court disposed of Section 483 CrPC application directing day-to-day trial
- 24.09.2025 to 21.02.2026: Multiple adjournments for cross-examination of PW-1
- 11.11.2025: Cross-examination closed (later recalled)
- 07.03.2026: Final order closing cross-examination
- 28.04.2026: Non-bailable warrant issued without prior bailable warrant
- 12.05.2026: High Court hearing and disposal of applications
The Parties' Positions
The applicants contended that the closure of cross-examination violated their right to a fair trial under Article 21 of the Constitution and the principles laid down in K. S. Puttaswamy v. Union of India and State of U.P. v. Krishna Kumar. They argued that the non-bailable warrant was illegal as it was issued without exhausting the possibility of bailable warrants or ensuring procedural fairness.
The State, through the Additional Government Advocate, argued that the applicants had repeatedly delayed proceedings despite the High Court’s earlier direction for expeditious disposal. It was submitted that the applicants were not cooperating and had waited until after issuance of the non-bailable warrant to approach the High Court, thereby abusing the process of law.
Relief Sought
The applicants sought:
- Quashing of the order dated 07.03.2026 closing cross-examination
- Quashing of the non-bailable warrant dated 28.04.2026
- Grant of one opportunity to cross-examine PW-1 without further adjournment
- Stay on the non-bailable warrant pending compliance
The Legal Issue
The central question was whether the right to cross-examine the complainant in a Section 138 NI Act case can be summarily denied by the Trial Court without violating the principles of natural justice, and whether a non-bailable warrant may be issued without first issuing a bailable warrant or ensuring the accused has been given a fair opportunity to defend themselves.
Arguments Presented
For the Appellant/Petitioner
Learned counsel submitted that cross-examination is a statutory right under Section 313 CrPC and an essential component of a fair trial under Article 21. The Trial Court had already adjourned the matter multiple times on the pretext of compromise, yet abruptly closed the opportunity without recording reasons. The non-bailable warrant was issued without any prior bailable warrant, contrary to the mandate in Arnesh Kumar v. State of Bihar, which requires courts to consider less restrictive alternatives before issuing non-bailable warrants. The applicant offered to appear on a single day with no further delay and to pay costs.
For the Respondent/State
The Additional Government Advocate contended that the applicant had repeatedly delayed proceedings despite the High Court’s clear direction on 22.08.2025 for day-to-day trial. The record showed multiple adjournments sought by the applicant. The non-bailable warrant was issued only after the applicant failed to appear despite summons and after the Trial Court had closed the evidence stage. The application was filed belatedly, only after the warrant was issued, indicating mala fide intent to delay.
The Court's Analysis
The Court acknowledged the State’s concern regarding delay but emphasized that procedural fairness cannot be sacrificed in the name of expediency. The High Court observed that the right to cross-examine a material witness, particularly the complainant in a cheque dishonour case, is not a privilege but a right grounded in the principles of natural justice and the right to a fair trial.
"The denial of cross-examination of PW-1, who is the sole witness to the transaction and the issuer of the notice, strikes at the very root of the accused’s right to defend himself. The Trial Court cannot close the evidence stage merely because the accused has sought adjournments in the past."
The Court noted that the issuance of a non-bailable warrant without first issuing a bailable warrant was procedurally flawed. The judgment in Arnesh Kumar v. State of Bihar mandates that courts must consider whether the accused can be dealt with through a bailable warrant or summons before resorting to arrest or non-bailable warrants. The Trial Court had not recorded any reasons for bypassing this mandatory step.
The Court further held that the applicant’s offer to appear on a single day, pay costs, and forgo any future adjournments was a genuine attempt to resolve the matter. The State’s argument of delay could not override the fundamental right to be heard.
The Verdict
The applications were disposed of with the following directions:
- The applicant shall be granted one opportunity to cross-examine PW-1 on 20.05.2026 before the Trial Court
- The applicant shall appear before the Trial Court on 14.05.2026 with a certified copy of this order
- The Trial Court shall fix the matter for cross-examination on 20.05.2026 and conclude it on the same day
- The applicant shall deposit a bank draft of Rs. 60,000/- for all three cases payable to the complainant on 20.05.2026
- The non-bailable warrant dated 28.04.2026 is stayed subject to compliance with the above directions
- The applicant shall not seek any further adjournment; failure to comply will result in cancellation of this order
- The Trial Court shall proceed on a day-to-day basis as directed on 22.08.2025
What This Means For Similar Cases
Cross-Examination Cannot Be Denied on Grounds of Delay
- Practitioners must argue that even if an accused has sought multiple adjournments, the right to cross-examine a key witness cannot be extinguished without a reasoned order
- Courts must record specific reasons for closing evidence, especially when the complainant is the sole witness to the transaction
- The doctrine of audi alteram partem applies with full force in NI Act cases
Non-Bailable Warrants Require Procedural Safeguards
- Issuing a non-bailable warrant without first issuing a bailable warrant violates Arnesh Kumar v. State of Bihar
- Courts must consider alternatives to arrest, including summons and bailable warrants, before resorting to non-bailable warrants
- Failure to follow this procedure renders the warrant illegal and subject to quashing
Cost Imposition as a Deterrent Against Abuse
- The Court’s imposition of Rs. 60,000/- as cost for one-day cross-examination sets a precedent for deterring dilatory tactics
- Costs may now be routinely imposed in NI Act cases where accused seek last-minute adjournments
- This balances the need for expediency with the right to fair trial
