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TMI Blog2005 (10) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... n-chief as per amended provisions under Section 145(2) of Negotiable Instruments Act. The said affidavit was taken on record. 3. The applicant had preferred an application before the learned Magistrate for calling the complainant for recording his examination-in-chief. By order dated 18-5-2005, the learned Magistrate rejected the said application. Being aggrieved by the said order, this application has been preferred. 4. The learned advocate for the applicant has submitted that various facts are introduced in the examination-in-chief in the form of affidavit which do not find place in the complaint, this would cause prejudice to the applicant hence, the complainant ought to be directed to lead oral evidence in the form of examination-in-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord by the Court. The second part of Sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 39. We are clearly of the opinion that according to the language of Section 145 of the Act, the evidence (examination-in-chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he/she may request the Court to call the complainant for cross-examination. 6. This issue also came to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of two parts. As per Section 145(2) the Court shall on the application of the prosecution or the accused summon and examine the person giving evidence on affidavit as to the facts stated therein. It is submitted that this provision leaves no discretion to the trial Court and in the event that an application is made, the Court has to summon and examine any person giving evidence on affidavit as to the facts contained therein. Mr. Thakore the learned Counsel for the applicant has further submitted that this Sub-section (2) of Section 145 was not taken into consideration by the Division Bench and the Division Bench only considered the provisions of Section 145(1). I do not find this submission to be correct. As observed earlier, this provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, if the course in the case of Bipin Shantilal Panchal (supra), is followed by the trial Court there should not be any prejudice to the accused persons. Thus, on perusal of the order of the learned Magistrate dated 18-5-2005, I find that the order is just, legal and proper and no interference is called for. Application is rejected. 11. It is clarified that if any objection is raised during the evidence taking stage regarding admissibility of any material or item or oral evidence, the trial Court to make a note of such objection and mark the objected document or portion tentatively as an Exhibit in the case subject to such objections to be decided at the last stage during the final judgment. 12. At this stage the learned advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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