2009 (5) TMI 532 - SC - Companies Law

Examination of a witness - Held that - Appeal dismissed. No justification for arriving at a finding that a witness can again be summoned for his examination-in-chief in the Court despite affirming affidavit in that behalf. Respondent would however submit that having regard to the provisions of section 61 of the Code of Criminal Procedure and furthermore in view of the fact that a complainant is required to be present throughout and thus unless exempted question of summoning him does not arise. However keeping in view the fact that there appears to be an apparent dissimilarity in the signatures of the deponent appearing at pages 39 and 61 there exists a necessity for conducting an enquiry in this behalf therefore direct the Registrar (Judicial) to conduct an enquiry

Issues Involved:
1. Validity of the affidavit evidence under Section 145 of the Negotiable Instruments Act, 1881.
2. Requirement of cross-examination of the deponent of the affidavit.
3. Alleged discrepancies in the appellant's signatures.
4. Procedural aspects under the Code of Criminal Procedure and Code of Civil Procedure.

Issue-wise Detailed Analysis:

1. Validity of the affidavit evidence under Section 145 of the Negotiable Instruments Act, 1881:
The appellant challenged the High Court's decision regarding the admissibility of evidence by affidavit under Section 145 of the Negotiable Instruments Act, 1881. The Supreme Court noted that Section 145 contains a non obstante clause, indicating that the provisions of the Code of Criminal Procedure, 1973, are not applicable. The Court emphasized that evidence by affidavit is permissible and can be read in any inquiry, trial, or other proceedings under the said Code, subject to just exceptions. The Court clarified that while sub-section (1) of Section 145 uses the term 'may,' indicating discretion, sub-section (2) uses 'shall,' mandating the summoning and examination of any person giving evidence on affidavit if requested by the prosecution or the accused.

2. Requirement of cross-examination of the deponent of the affidavit:
The Court highlighted that the purpose of summoning a deponent who has filed an affidavit is primarily for cross-examination. The Court referred to the statutory scheme under the Code of Civil Procedure and the Code of Criminal Procedure, which envisages examination-in-chief, cross-examination, and re-examination. The Court concluded that once an affidavit is filed, the deponent need not re-examine himself regarding its contents but may be cross-examined and re-examined as necessary. This interpretation aligns with the objective of expediting trials and avoiding redundant procedures.

3. Alleged discrepancies in the appellant's signatures:
The respondent pointed out discrepancies in the appellant's signatures on different documents, suggesting potential forgery or misrepresentation. The Court acknowledged these discrepancies and directed the Registrar (Judicial) to conduct an inquiry under Section 340 of the Code of Criminal Procedure to investigate the matter. The Court emphasized that this inquiry should not impede the ongoing trial in the lower court.

4. Procedural aspects under the Code of Criminal Procedure and Code of Civil Procedure:
The Court examined relevant provisions from the Code of Civil Procedure, specifically Order XIX, Rule 1, and Order XVIII, Rule 4, which allow evidence by affidavit and outline procedures for cross-examination and re-examination. The Court also referred to Section 296 of the Code of Criminal Procedure, which contains similar provisions for evidence of a formal character. The Court reiterated that the legislative intent behind these provisions is to streamline the trial process and reduce the time taken for examining witnesses.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision. The Court affirmed that evidence by affidavit is valid under Section 145 of the Negotiable Instruments Act and that the deponent need only be summoned for cross-examination. The Court also ordered an inquiry into the alleged discrepancies in the appellant's signatures. The appeal was dismissed with costs, and counsel's fee was assessed at Rs. 25,000.

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