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TMI Blog2009 (5) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that respondent examined himself and was cross-examined at length. His cross-examination started 12-9-2008. It runs into nine typed pages. Indisputably, prior to offering himself for cross-examination, appellant proved his affidavits which were marked as Exhibits CW1/A to CW1/1. A large number of questions were asked to the deponent on the contents of the affidavits. 5. It, however, appears that an application purported to be under section 5(2) of the Act was filed by the appellant on 7-3-2008 which by reason of an order dated 14-3-2008 was dismissed. Appellant filed an application before the High Court purported to be under section 482 of the Code of Criminal Procedure for setting aside the said order. By reason of the impugned judgment, the same has been dismissed. 6. Mr. Vishal Aggarwal, learned counsel appearing on behalf of the appellant, would contend that on a plain reading of section 145 of the Act, it would be evident that the same is imperative in character. By reason of the said provision, it was urged, the Court has no other option but to examine a witness including the complainant who had affirmed an affidavit in support of his statement. Drawing our attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is enclosed - Annexure R-3. 8. After 19-2-2008, the appellant had not been attending the proceedings for more than 6 months resulting into imposition of costs and closure of his right of cross-examination on 10-9-2008. A certified copy of the same is enclosed - Annexure R-4. 9. The petitioner has not been presenting himself even after the ex parte order in the aforesaid civil suit and seeking adjournment on frivolous grounds." 9. No rejoinder thereto has been filed by the appellant. The contents thereof even otherwise are matter of record. 10. Evidence by way of affidavit, thus, was filed both in the civil proceedings as also in the criminal proceedings. We have noticed hereinbefore, the cross-examination is also over. It has not been shown nor do we find that the appellant has been prejudiced in any manner whatsoever. Section 145 of the Act reads as under :- "145. Evidence on affidavit.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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. (2) The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the orders of the Court. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it." A Three Judge Bench of this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [2004] 1 SCC 702, held as under :- "13. The other sub-rules of rule 4 of Order 18 provide for other and further procedures as regards examination of witness. 14. Rule 5 refers to the evidence which is required to be taken in cases where the appeal is allowed in contradistinction with the cases where appeal is not allowed as envisaged in rule 13 of Order 18 of the Code of Civil Procedure. Rule 5, therefore, envisages a situation where Court is required to take down an evidence in the manner laid down therein which would mean that where cross-examination or re-examination of the witness is to take place in the Court. 15. The examination of a witness would include evidence-in-chief, cross-examination or re- examination. Rule 4 of Order 18 speaks of examination-in- chief. The unamended rule provided for the manner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) of section 296 of the Code of Criminal Procedure, in our opinion, should be interpreted in that manner. 14. Our attention has furthermore been drawn to a decision of this Court in Sushil Kumar Sharma v. Union of India [2005] 6 SCC 281, wherein this Court held as under :- "16. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat [2004] 6 SCC 672, Unique Butyle Tube Industries (P.) Ltd. v. U.P. Financial Corpn. [2003] 2 SCC 455 and Padma Sundara Rao v. State of T.N. [2002] 3 SCC 533 while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary." (p. 286) There is no dispute with regard to the aforementioned proposition of law. However, while interpreting a provision, the Court must be able to assign a meaning thereto. A plain meaning or literal interpretation should not lead to absurdity or an anomalous situation. The Court therein was dealing with an offence. The said word used having regard to the contentions raised therein that section 498A of the Indian Penal Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following amendments in the Negotiable Instruments Act, 1881, namely:- (i ) to (iii)****** (iv)to prescribe procedure for dispensing with preliminary evidence of the complainant; (v)******. (vi)to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases;" 16. The object of enactment of the said provision is for the purpose of expedition of the trial. A criminal trial even otherwise is required to be expeditiously held. 17. We, therefore, do not find any 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. 18. 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. Section 61 of the Code, however, in our opinion, has no application to the facts and circumstances of this case. 19. We do not find any merit in this appeal. It is dismissed accordingly. However, keeping in view the fact that there appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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