Section 145(2) NI Act • Cross-Examination of Complainant • Trial Strategy April 22, 2026 18 Min Read

Cross-Examination of Complainant on Affidavit: Section 145(2) NI Act Mandatory Right & Trial Procedure

Advocate & Legal Consultant • Delhi High Court & District Courts

Strategic Executive Summary

Section 145(1) NI Act permits the complainant to tender evidence-in-chief on affidavit, but Section 145(2) creates an absolute, mandatory right for the accused to recall the complainant for oral cross-examination.
In Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore (2010), the Supreme Court ruled that the word 'shall' in Section 145(2) deprives the trial court of any discretion to refuse recall upon an accused's application.
Refusal by a Magistrate to permit cross-examination under Section 145(2) constitutes an incurable jurisdictional error that vitiates the conviction and mandates remand on appeal.
The Supreme Court guidelines in Indian Bank Association (2014) streamline summary trial procedures but do not dilute or extinguish the statutory right of oral cross-examination.
Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), an application under Section 145(2) must be moved immediately upon recording the plea of defence under Section 274 BNSS.

Table of Contents

Cross-Examination of Complainant on Affidavit: Section 145(2) NI Act Mandatory Right & Trial Procedure - Urban Rights Legal Consultants

When a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 enters trial, the complainant routinely steps into court armed with a pre-drafted evidence affidavit under Section 145(1). To uninitiated litigants and rushed trial courts, this affidavit is often treated as gospel. However, the bedrock of Indian criminal jurisprudence is that no untested piece of paper can rob a citizen of their liberty. Under Section 145(2) of the NI Act, as authoritatively construed by the Supreme Court of India in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, the accused possesses an absolute, non-negotiable statutory right to recall the complainant for full-scale oral cross-examination. In the trial courts of Delhi NCR—spanning Tis Hazari, Saket, Patiala House, Rohini, and Dwarka—mastering Section 145(2) jurisprudence, drafting unassailable recall applications, and standing firm against summary dismissals is the single most vital defense weapon to demolish statutory debt presumptions and secure an acquittal.

1. The Statutory Dilemma: Section 145(1) Affidavit vs Section 145(2) Right to Recall

In the bustling Negotiable Instruments Act courts across Delhi NCR—whether in the Special NI Act digital courts at Patiala House, the crowded Magisterial corridors of Tis Hazari and Saket, or the fast-track courts of Rohini, Dwarka, Gurugram, and Faridabad—the pivot upon which every criminal trial turns is the cross-examination of the complainant. Under the traditional summary trial framework of the Code of Criminal Procedure, 1973 (now codified under the Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS]), prosecution evidence had to be recorded orally before the court.

However, to overcome systemic trial delays caused by chronic judicial backlogs, Parliament enacted the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, introducing Section 145 into the Negotiable Instruments Act, 1881. This provision fundamentally split the evidence stage into two distinct statutory limbs:

The Dual Architecture of Section 145 NI Act

Section 145(1) NI Act: "The evidence of the 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 under the said Code."

Section 145(2) NI Act: "The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."

Section 145(1) allows the complainant to enter their evidence-in-chief by merely filing a sworn affidavit, dispensing with the time-consuming process of oral examination-in-chief in the witness box. But this legislative concession to the complainant creates an immediate constitutional friction with the accused's fundamental right to a fair trial under Article 21. If the complainant can prove their case on paper without facing judicial scrutiny, how does the accused demolish the statutory presumptions of debt under Section 118(a) and Section 139?

The answer lies in the mandatory imperative of Section 145(2). While Section 145(1) uses the permissive word "may" for the complainant's affidavit, Section 145(2) deliberately incorporates the mandatory word "shall" when an application is moved by the accused. The Magistrate has zero statutory authority to dispense with oral cross-examination when demanded by the defence.

2. The Authoritative Benchmark: Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore

For several years following the 2002 amendment, trial magistrates routinely misinterpreted Section 145(2). In an overzealous bid to achieve disposal targets, trial courts often dismissed accused applications for cross-examination, treating Section 145(2) as discretionary because of the initial phrase "The court may, if it thinks fit...". This widespread miscarriage was permanently settled by a 2-Judge Bench of the Supreme Court of India in the landmark ruling:

Supreme Court Locus Classicus: Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83

The Supreme Court conducted an exhaustive legislative and grammatical dissection of Section 145(2), resolving the apparent conflict between the words "may" and "shall":

"On a bare reading of Section 145, it is clear that while sub-section (1) allows the complainant to give his evidence on affidavit, sub-section (2) provides that the court 'may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein'... The use of the word 'may' in the first part and 'shall' in the second part makes the position abundantly clear. While the court has the discretion to summon any person who has given evidence on affidavit suo motu, once an application is made either by the prosecution or by the accused, the court has no choice in the matter and it shall summon and examine that person."

The Bench further ruled on a crucial asymmetry: while the complainant is permitted to give evidence on affidavit, the accused CANNOT give defence evidence on affidavit. The accused must enter the witness box orally if they choose to testify under Section 351 BNSS (formerly Section 315 CrPC), because cross-examination is the ultimate truth-seeking mechanism recognized by Indian evidence law.

The Supreme Court in Mandvi Cooperative Bank categorically laid down that the right of cross-examination is not an empty formality. The accused cannot be compelled to disclose their specific defence or produce their documents prior to cross-examining the complainant, because the prosecution must stand on its own legs.

3. The Indian Bank Association Ruling: Dispelling the "Summary Disposal" Fallacy

A frequent battlefield in Delhi trial courts arises when Magistrates erroneously cite the Supreme Court's directives in Indian Bank Association v. Union of India (2014) 5 SCC 590 to curtail or reject Section 145(2) applications. Many junior trial magistrates mistakenly believe that Indian Bank Association authorizes summary rejection of cross-examination requests if the accused has not disclosed a "substantial defence" at the stage of framing notice under Section 274 BNSS (Section 251 CrPC).

Legal Issue	Erroneous Magisterial Impression	True Legal Position (Supreme Court Precedents)
Discretion to Refuse Section 145(2)	Magistrate can reject the application if the defence plea is perceived as vague, repetitive, or aimed at delaying trial.	Zero Discretion. The word "shall" in Section 145(2) is mandatory. As held in Mandvi Cooperative Bank and reaffirmed in Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, the court is legally bound to summon the deponent for oral cross-examination.
Timing of Section 145(2) Application	Must be filed instantly upon framing of notice; delay of even one date forfeits the right.	The application is typically moved immediately upon recording the plea of defence under Section 274 BNSS, but reasonable opportunity must be afforded to the accused to formulate cross-examination strategy.
Indian Bank Association (2014) Scope	Trial courts can bypass oral cross-examination and decide the case purely on documents.	The Supreme Court directions in Indian Bank Association were intended to streamline dates and prevent endless adjournments, not to extinguish the fundamental statutory right to recall the complainant for cross-examination under Section 145(2).
Right to Put Unpleaded Documents	Accused cannot confront the complainant with bank statements or ledger entries unless filed with notice reply.	Under Section 146 & 148 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the defence is fully entitled to confront the witness with documents to test their veracity, uncover financial incapacity, or shake their credit.

In Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, the Supreme Court unequivocally emphasized that when an affidavit is tendered under Section 145(1), it does not become substantive evidence until the deponent submits to the crucible of cross-examination under Section 145(2). Any order depriving the accused of cross-examination strips the proceedings of their judicial character.

4. Fatal Trial Consequence: Denial of Cross-Examination Vitiates the Conviction

What happens when a Magistrate rushes to judgment, denies the accused's Section 145(2) application, closes complainant evidence (CE), records the accused's statement under Section 351 BNSS (313 CrPC), and convicts the drawer? In the appellate courts of Delhi—the Principal District & Sessions Judges at Tis Hazari, Saket, Patiala House, Rohini, and Dwarka—such an order is dead on arrival.

Reversible Error: Conviction Rendered Void Ab Initio

The refusal to grant an opportunity under Section 145(2) constitutes an incurable jurisdictional illegality, not a mere procedural irregularity under Section 511 BNSS (Section 465 CrPC):

Violation of Natural Justice (Audi Alteram Partem): Cross-examination is the sole statutory vehicle by which the accused can elicit admissions, expose inconsistencies, and establish a preponderance of probabilities to rebut Section 139 NI Act.
Total Evidentiary Inadmissibility: Where a deponent does not subject themselves to cross-examination despite an application under Section 145(2), their affidavit filed under Section 145(1) cannot be read into evidence. A conviction based on an un-cross-examined affidavit is a conviction based on zero legal evidence.
Mandatory Remand by Sessions Court or High Court: In appellate or revisional proceedings under Section 438 or 442 BNSS (Sections 397/401 CrPC), the appellate court has no option but to quash the conviction and remand the matter back to the trial magistrate, resetting the clock by several years.

For the complainant, an erroneous Magisterial refusal of Section 145(2) is a poisoned chalice. While the complainant may celebrate a quick conviction before the trial court, the Sessions Court will inevitably set aside the judgment on appeal, directing a de novo trial from the stage of cross-examination. Litigators in Delhi NCR must proactively advise the trial court to allow Section 145(2) applications to insulate any future conviction from appellate collapse.

5. Step-by-Step Courtroom Procedure: From Notice Framing to Cross-Examination

In the contemporary criminal trial governed by the Bharatiya Nagarik Suraksha Sanhita, 2023, the practical procedure unfolds through well-demarcated courtroom milestones:

Chronological Trial Sequence in Delhi NCR Magistrate Courts

Pre-Summoning Stage: Complainant files complaint along with Evidence by Way of Affidavit under Section 145(1) NI Act and documents. Magistrate considers affidavit and issues summons under Section 227 BNSS (204 CrPC).
Appearance & Notice of Accusation: Accused appears, secures bail under Section 478 BNSS (436 CrPC), and the Magistrate frames Notice under Section 274 BNSS (251 CrPC).
Recording Defence Plea: The accused pleads "Not Guilty", claims trial, and briefly states their line of defence (e.g., security cheque misused, repayment made in cash, or cheque lost/stolen).
Immediate Filing of Section 145(2) Application: Defense counsel immediately hands over a written application under Section 145(2) NI Act praying for the summoning and oral cross-examination of the complainant (CW-1).
Magisterial Endorsement & Summons to Complainant: The Magistrate allows the application and lists the matter for Complainant Evidence (CE) for cross-examination of CW-1.
The Cross-Examination Session: Complainant enters the witness box, tenders their affidavit on oath, affirms exhibits, and is subjected to cross-examination by defense counsel under Section 146 of the Bharatiya Sakshya Adhiniyam, 2023.

Practitioner Alert: Never let the trial court record your plea of defence under Section 274 BNSS without simultaneously pressing your Section 145(2) application. In several courts, if defence counsel fails to move the application on the date notice is framed, trial courts attempt to close CE on the premise that the accused did not seek recall.

6. Ready-to-File Model Application Under Section 145(2) NI Act

Here is the battle-tested, standardized application drafted for use in the District Courts of Delhi NCR:

Model Application Under Section 145(2) NI Act

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE / METROPOLITAN MAGISTRATE (NI ACT DIGITAL COURT) DISTRICT COURTS: SAKET / TIS HAZARI / PATIALA HOUSE / DWARKA / ROHINI, NEW DELHI IN THE MATTER OF: COMPLAINT CASE NO. ________ OF 2026 XYZ PRIVATE LIMITED / SH. AMIT VERMA ...COMPLAINANT VERSUS SH. RAJESH KUMAR ...ACCUSED APPLICATION ON BEHALF OF THE ACCUSED UNDER SECTION 145(2) OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 READ WITH SECTION 278 OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (BNSS) FOR SUMMONING AND CROSS-EXAMINATION OF THE COMPLAINANT (CW-1) MOST RESPECTFULLY SHOWETH: 1. That the above-titled complaint under Section 138 of the Negotiable Instruments Act, 1881 is pending adjudication before this Hon'ble Court and is currently listed for further proceedings. 2. That notice of accusation under Section 274 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 251 CrPC) has been framed against the Accused, wherein the Accused has pleaded not guilty and claimed trial, specifically disclosing his bona fide defence. 3. That the Complainant has tendered his evidence-in-chief by way of an affidavit under Section 145(1) of the Negotiable Instruments Act, 1881. 4. That the contents of the said affidavit are entirely false, misleading, and contrary to the true facts. The Complainant has suppressed material facts regarding the underlying transaction, the lack of financial capacity, non-existence of any legally enforceable debt, and misuse of a blank security cheque issued in 2023. 5. That in terms of the authoritative judgment of the Hon'ble Supreme Court of India in "Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore" (2010) 3 SCC 83 and "Radhey Shyam Garg v. Naresh Kumar Gupta" (2009) 13 SCC 201, the right of the accused to recall the complainant for oral cross-examination is a mandatory statutory right under Section 145(2) NI Act, and this Hon'ble Court has no discretion to refuse the same. 6. That cross-examination of the Complainant (CW-1) is indispensable to elicit truth, demolish the statutory presumptions under Section 118(a) and Section 139 of the NI Act, and establish a preponderance of probabilities in favour of the Accused. 7. That no prejudice, delay, or hardship shall be caused to the Complainant if the present application is allowed; whereas severe and irreparable miscarriage of justice shall be visited upon the Accused if he is deprived of the opportunity to cross-examine the Complainant. PRAYER: It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to: (a) Allow the present application under Section 145(2) of the Negotiable Instruments Act, 1881; (b) Summon and recall the Complainant (CW-1) for oral cross-examination on his evidence affidavit; and (c) Pass such other and further order(s) as this Hon'ble Court may deem fit and proper in the interest of justice. ACCUSED THROUGH COUNSEL NEW DELHI DATED: __/__/2026

7. Practical Defense Tactics & Beating Magisterial Objections

In high-pressure Delhi courtrooms, trial magistrates are under administrative pressure from High Court circulars to dispose of Section 138 cases within six months. As a trial advocate, you will frequently encounter resistance from both the Bench and complainant counsel. Here is how to navigate and overcome those courtroom hurdles:

Courtroom Combat: Overcoming Resistance

The "Vague Defence" Objection: Complainant counsel often argues that the Section 145(2) application must be dismissed because the accused did not spell out specific questions or attach bank statements. Counter: Rely on Mandvi Cooperative Bank to argue that the law does not require the defence to lay bare its cross-examination strategy beforehand; the statutory right is unconditional.
The "Interim Compensation Pending" Roadblock: If an application under Section 143A NI Act (20% interim compensation) is pending, complainant counsel often urges the court to decide Section 143A before allowing cross-examination. Defense Strategy: Insist that Section 143A can only be decided after considering the prima facie merits of the defence disclosed during notice framing, and fixing a date for CE does not prejudice Section 143A arguments.
Time-Bound Questioning: If the Magistrate attempts to impose an arbitrary 10-minute cap on cross-examination, place on record that under Section 146 BSA (Section 138 IEA), the defence is entitled to test the witness's memory, credibility, and financial means, and undue truncation violates fair trial guarantees under Article 21.

Statutory Authorities & Legal References

Negotiable Instruments Act, 1881 (Section 138 - Dishonour of Cheque, Section 139 - Presumption in Favour of Holder, Section 145(1) & (2) - Evidence on Affidavit)
Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 274 - Substance of Accusation / Notice; Section 278 - Procedure in Summary Trials; Section 351 - Accused as Competent Witness)
Bharatiya Sakshya Adhiniyam, 2023 (Section 146 - Order of Examinations; Section 148 - Cross-Examination as to Previous Statements)
Supreme Court 2-Judge Bench in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83 (Mandatory Character of Section 145(2) & Affidavit Restrictions on Accused)
Supreme Court 2-Judge Bench in Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201 (Deponent Must Submit to Cross-Examination)
Supreme Court 3-Judge Bench in Indian Bank Association v. Union of India (2014) 5 SCC 590 (Summary Trial Directions & Stage of Evidence)
Delhi High Court Ruling in Rajesh Agarwal v. State & Anr. (2010) ILR 6 Delhi 610 (Procedure Following Notice Under Section 251 CrPC / Section 274 BNSS)

Disclaimer: This article is published strictly for academic and educational purposes under the Advocates Act, 1961. It does not constitute formal legal advice, solicitation, or advertisement under Rule 36 of the Bar Council of India Rules, nor does it create an advocate-client relationship. For case-specific legal counsel, readers should consult an independent advocate.

Can a Magistrate dismiss an accused's application under Section 145(2) NI Act to speed up the trial?

No. Under the Supreme Court's binding ruling in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83, the word 'shall' in Section 145(2) makes it mandatory for the Magistrate to summon and examine the complainant upon an application moved by the accused. The trial court possesses zero discretion to refuse oral cross-examination under the pretext of speedy trial or summary procedure.

What is the legal effect if a conviction is passed without permitting cross-examination under Section 145(2)?

The conviction is completely vitiated and rendered void ab initio. The un-cross-examined evidence affidavit of the complainant cannot be treated as substantive evidence under Indian law. In appellate proceedings before the Sessions Court or High Court, such convictions are routinely quashed and remanded back to the trial magistrate for de novo trial from the stage of cross-examination.

Can the accused also tender their defence evidence on affidavit under Section 145?

No. In Mandvi Cooperative Bank Ltd., the Supreme Court held that the legislative concession under Section 145(1) is available exclusively to the complainant. If the accused chooses to step into the witness box under Section 351 BNSS (formerly Section 315 CrPC), they cannot file an affidavit in lieu of examination-in-chief; they must give oral testimony from the witness box.

At what stage of the trial must the Section 145(2) application be filed in Delhi courts?

The application under Section 145(2) should be filed immediately upon the framing of Notice of accusation under Section 274 BNSS (formerly Section 251 CrPC), as soon as the accused enters their plea of 'Not Guilty' and discloses their bona fide defence.