2012 (2) TMI 719 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the complainant, a juristic person, could change its representative during the proceedings.
2. Whether evidence tendered by the complainant on affidavit is legal evidence if the deponent fails to tender himself for cross-examination.

Summary:

Issue 1: Change of Representative

The court addressed whether a juristic person, such as the complainant company, could change its representative during the proceedings. It was affirmed that a juristic person, being incapable of physical presence, must be represented by a living person. The complainant has the right to choose its representative, and substitution is permissible. This was supported by the decision in the case of *Associated Cement Company Limited vs. Keshavanand* (AIR 1998 SC 596) and *NATIONAL SMALL Industries Corporation Ltd. v. State (NCT of Delhi)* (AIR 2009 SC 1284). The court accepted the complainant's contention that due to changed circumstances, the substitution of PW1 with PW2 was valid.

Issue 2: Legal Evidence and Cross-Examination

The court examined whether the evidence tendered by the complainant on affidavit, as permissible u/s 145 of the NI Act, is legal evidence if the deponent fails to tender himself for cross-examination. It was concluded that mere filing of an affidavit does not constitute legal evidence if the deponent does not appear for cross-examination. Section 145(2) mandates that the court must summon and examine any person giving evidence on affidavit if requested by the prosecution or the accused. The court emphasized that the provisions of the Evidence Act are applicable, and the affidavit must be tested through cross-examination to be considered legal evidence. The court referred to Sections 135 to 139 of the Evidence Act, which outline the necessity of cross-examination for a statement to be considered complete evidence.

Conclusion:

The court found that the complainant failed to establish the charge against the accused u/s 138 of the NI Act. The evidence provided by PW1 was not legally admissible as he did not subject himself to cross-examination. PW2's testimony was insufficient as he did not provide any material evidence. The court dismissed the appeal, confirming the trial court's judgment, and ruled out the possibility of a retrial under Section 167 of the Evidence Act.