2008 (5) TMI 699 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation of Section 145(2) of the Negotiable Instruments Act.
2. The right of the accused to summon and examine the complainant who has filed evidence on affidavit.
3. The applicability and interpretation of Section 296 of the Cr.P.C. in relation to Section 145 of the Negotiable Instruments Act.
4. The purpose and legislative intent behind Chapter XVII of the Negotiable Instruments Act.
5. The procedural aspects and rights of the accused in the context of evidence given on affidavit.

Issue-wise Detailed Analysis:

1. Interpretation of Section 145(2) of the Negotiable Instruments Act:
The petitioner challenged the order of the Metropolitan Magistrate, which dismissed the application under Section 145(2) of the Negotiable Instruments Act. The petitioner argued that the language of Section 145(2) is clear and mandates the court to summon and examine any person giving evidence on affidavit upon application by the prosecution or the accused. The court, however, held that the term "any person" includes the complainant, but the right to summon and examine such a person is primarily for cross-examination purposes and not for re-examining the complainant or witness who has already given evidence on affidavit.

2. The right of the accused to summon and examine the complainant who has filed evidence on affidavit:
The petitioner contended that the accused has an undeniable right to summon and examine the complainant who has given evidence on affidavit. The court disagreed, stating that the right under Section 145(2) is mainly for cross-examination. The court emphasized that allowing the accused to summon and re-examine the complainant or witness would defeat the purpose of the provision, which aims to expedite the trial process under Section 138 of the Negotiable Instruments Act.

3. The applicability and interpretation of Section 296 of the Cr.P.C. in relation to Section 145 of the Negotiable Instruments Act:
The court discussed the applicability of Section 296 of the Cr.P.C., which allows evidence of a formal character to be given by affidavit. The court noted that the Supreme Court's interpretation of Section 296(2) in the State of Punjab v. Naib Din case supports the view that the court has a duty to call such persons for examination or cross-examination upon application. However, the court clarified that this does not extend to re-examining the complainant or witnesses who have already provided evidence on affidavit.

4. The purpose and legislative intent behind Chapter XVII of the Negotiable Instruments Act:
The court highlighted that Chapter XVII of the Act was introduced to provide greater efficacy to cheque transactions and to ensure speedy disposal of cases involving dishonoured cheques. The provisions, including Section 145, are designed to make the trial process less cumbersome and more efficient. The court emphasized that interpreting Section 145(2) to allow re-examination of the complainant would contradict the legislative intent of expediting the trial process.

5. The procedural aspects and rights of the accused in the context of evidence given on affidavit:
The court explained that the evidence given on affidavit by the complainant is valid throughout the trial and not just at the pre-summoning stage. The accused has the right to cross-examine the complainant and any witnesses who have given evidence on affidavit. The court rejected the petitioner's argument that the complainant must be re-examined in person, stating that such an interpretation would prolong the trial unnecessarily and go against the objective of Chapter XVII of the Act.

Conclusion:
The court dismissed the petition, upholding the Magistrate's decision to reject the application under Section 145(2) of the Negotiable Instruments Act. The court clarified that while the term "any person" in Section 145(2) includes the complainant, the provision primarily grants the right to cross-examine, not to re-examine the complainant or witnesses who have already given evidence on affidavit. This interpretation aligns with the legislative intent to expedite the trial process under Section 138 of the Negotiable Instruments Act.