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TMI Blog2008 (5) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 2. Learned Magistrate has rejected the application on the ground that the phrase any person mentioned in the subsection (2) of Section 145 does not include the complainant, because the complainant has been specifically mentioned in Subsection (1) thereof, but there is no such mention in subsection (2). His reasoning is that if the complainant is to be included in the phrase any person occurring in Sub-section (2) of Section 145 of the Act, then the purpose of allowing the complainant to file evidence on affidavit would be defeated. In each and every case, he observes, the accused will move an application to get the complainant examined just to delay the matter. Learned Magistrate has also referred to Section 296 of the Cr.P.C. (the Code) which employs some what similar language as is employed in Section 145 of the Act. The same reads as follow: 296. Evidence of formal character on affidavit-(1) The evidence of any person whose evidence is of a formal character may be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant in Court, and proceeds to examine the complaint at the pre-summoning stage on the evidence on affidavit tendered by the complainant, for the purpose of deciding whether or not to issue process. However, once the process has been issued and the accused makes his appearance, he gets a right under Section 145(2) to summon and examine any person giving evidence on affidavit as to the facts contained therein, and this includes the complainant. He also relies on the aforesaid decision of the Supreme Court in Naib Din (supra). 6. Having heard learned counsel for the petitioner, I am not inclined to agree with the submissions of the petitioner, and I am of the view that the learned Magistrate has rightly dismissed the petitioner's application under Section 145(2) of the Act, though my reasons are somewhat different from those given by the learned Magistrate. 7. Section 4 of the Code, inter alia, states that all offences under any other law (i.e. laws other then the IPC) shall be investigated, enquired into, tried and otherwise be dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating, inter alia, the mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 144 and 146 of the Act. Section 138 creates the offence where the drawer fails to make payment of the amount of money covered by the cheque to the payee or the holder in due course, as the case may be, within 15 days of the receipt of the notice of dishonour, and the dishonour is for specified reasons. Section 139 raises a rebuttable presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. Section 143 makes applicable the procedure of summary trials as prescribed in the Code. Section 143 (2) (3) are very relevant and read as follows: 143. Power of Court to try cases summarily - (1) ... (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavor shall be made to conclude the trial within six months from the date of filing of the complaint. 10. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the evidence by way of affidavit of any other person, as a witness in support of the complaint. Section 145(1) cannot be read as carving out an exception only qua the complainant. In fact, once the complainant is permitted to lead his own evidence on affidavit, it does not stand to reason that the evidence of any other witness, whom the complainant may wish to call, should only be led by requiring the witness to personally appear in Court to make his statement on solemn affirmation. From the use of expression on the application of the prosecution or the accused used in Section 145(2) of the Act, and keeping in mind the overall object of speedy disposal of complaints under Section 138 by a summary trial procedure, it follows that the accused and witnesses called by him, if any, in support of his defense are also entitled to lead their evidence on affidavit. By virtue of Section 262 of the Code, Chapter XX of the Code dealing with trial of summons cases by Magistrates is applicable for summary trials. Section 254 of the Code, which is placed in the said Chapter, states that if the Magistrate does not convict the accused under Section 252 and Section 253, he shall proceed to hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified on his examination-in-chief. Direction of re-examination.- The re-examination shall be directed to the Explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 15. The right of the accused conferred by Section 145(2) of the Act, in the context of evidence led on affidavit by the complainant and by any other witness whom he may call, or whose evidence i.e. examination-in-chief has been led on affidavit normally can only mean a right of cross-examination. The accused is, however, entitled to raise objections to the evidence on affidavit of the complainant, or of witnesses called by him, since Section 145(1) of the Act states that affidavit may be read in evidence subject to all just exceptions . Similar would be the position with regard to the rights of the complainant vis-a-vis the evidence by way of affidavit(s) by the accused and other witnesses called by the accused in support of his defence. 16. The right of the accused to cross-examine the complainant or any other witness called by the complainant is preserved. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence which he is to give is purely of a formal nature? The enabling provision of Section 296 is thus a departure from the usual mode of giving evidence. The object of providing such an exception is to help the court to gain the time and cost, besides relieving the witness of his troubles, when all that the said witness has to say in court relates only to some formal points. 8. What is meant by an evidence of a formal character? It depends upon the facts of the case. Quite often different steps adopted by police officers during the investigation might relate to formalities prescribed by law. Evidence, if necessary on those formalities, should normally be tendered by affidavits and not by examining all such policemen in court. If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the court that he requires the deponent to be examined or cross-examined in Court. This is provided in Sub-section (2) of Section 296 of the Code. When any such application is made it is the duty of the Court to call such person to the court for the purpose of being examined. 21. The observations of the Supreme Court in relation to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application filed by the petitioner under Section 145(2) of the Act for examining the authorised representative of the complainant in person, the petitioner has given no justification except to say that because the proceedings under the Negotiable Instruments Act are criminal in nature it becomes very necessary in the interest of justice, that the complainant must depose their evidences before this Hon'ble Court on oath in person, not by way of the affidavit . The application further states in relation to Section 145(2) that: ...the section itself clearly speaks as under The Court may, if it thinks fit, and shall, on an application of the prosecution or the accused summon and examine any person giving evidence on affidavit as to the facts contained therein , thus needless to mention here that the Court is bound to examine-in-person, the person deposing on affidavit, when an application is being moved by either of the parties to the trial. 24. Thus, the petitioner has not disclosed any grounds whatsoever to justify his request for summoning the witness/deponent of the affidavit so as to justify the summoning of the witness to again be examined towards examination-in-chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used by the legislature. In the present case, it cannot be said that by restricting the right of the petitioner to examine the complainant or any witness called by him, who has tendered his evidence on affidavit, the Court is legislating. It is also argued that when the words of statute are clear and unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of what has not been said. For this purpose learned counsel for the petitioner has relied on State of Jharkhand and Anr. v. Govind Singh AIR2005SC294 . In my view the aforesaid proposition also does not advance the case of the petitioner, since on a meaningful interpretation, it cannot be said that Section 145(2) is reasonably susceptible to only one meaning, which is advanced by the petitioner. 26. Ultimately the petitioner relied on the decision of the Division Bench of the Bombay High Court in Maharaja Developers and Anr. v. Udaysingh Pratapsinghrao Bhonsle and Anr. to contend that the non obstinate clause in Section 142 or 145 of the Act does not override the provisions of Section 200 of the Code and that it is mandatory for the magistrate to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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