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TMI Blog2006 (7) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Act ) confers an unfettered right on the complainant and the accused to apply to the Court seeking direction to give oral examination-in-chief, of a person giving evidence on affidavit, even in respect of the facts stated therein and that if such a right is exercised, whether the Court is obliged to examine such a person in spite of the mandate of Section 145(1) of the Act? (B) Whether the provisions of Section 145 of the Act, as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002,(for short the amending Act of 2002 ) are applicable to the complaints under Section 138 of the Act pending on the date on which the amendment came into force? In other words, do the amended provisions of Section 145(1) and (2) of the Act operate retrospectively? 3. I was given to understand by the learned Counsel appearing for the petitioners in all the petitions that as the questions raised in this group of petitions are questions of law, reference to the facts of individual case is not necessary and accordingly I do not deem it necessary to narrate facts of each case for consideration of the questions that fall for my consideration. However, for the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2302 of 2005 the petitioner-accused has challenged the order dated 7.7.2005 rejecting his prayer to take the evidence of accused no.7 on affidavit relying upon the provisions of sub-section (1) of Section 145. That application was rejected by the learned Magistrate holding that sub-section (1) of Section 145 gives a right only to the complainant to give evidence on affidavit. In Writ Petition No.2192 of 2005 the accused filed application seeking de-exhibiting of the documents filed by PW 1 with his evidence on affidavit. That application was rejected by order dated 31.8.2005 holding that the accused had not taken any objection when the said affidavit was filed. In that case, the affidavit and the documents were filed on 30.3.2005 and the objection was raised on 31.8.2005. In most of the petitions, this Court while issuing notice has granted stay to the further proceedings. 5. Before I proceed to consider the questions raised in this group of writ petitions, it would be relevant to make a short reference to the background against which these questions have been raised by the learned Counsel for the petitioners. The learned Single Judge of this Court in Criminal Writ Petition No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit, the same has to be accepted and such affidavit is required to be kept on record 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. 40.(b) The Court concerned must ensure that examination-in chief, cross-examination and re-examination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court to summon a witness for examination in the event of an application by the accused. There cannot be any dispute about the said proposition. Once an application is made by the accused, a witness examined by the complainant by filing an affidavit of examination-in-chief will have to be summoned. The Learned Counsel for the petitioner placed reliance on the use of the word examination as defined in the Indian Evidence Act includes examination-in-chief, cross-examination and re-examination. He, therefore, submitted that once a witness is summoned under sub-section (2) of Section 145 his examination, i.e examination-in-chief, cross-examination and re-examination will have to be recorded. I find it difficult to accept the submission. When the statute has referred to word examination , the said word will have to be given a meaning with reference to the context in which it is used. The word examination has been obviously used in sub-section (2) in the context of the right of cross-examination of the rival party in case the evidence is led of a witness on affidavit. Thus, the mandatory provision of sub-section (2) is that the Court has to call the witness whose affidavit in exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia or applications under Section 482 of the Code for quashing of the complaint, some guidelines/directions may be passed for the benefit of the parties and the Magistrates dealing with these cases. They also suggested to frame the following issue which I would like to address in the later part of the judgment. Whether it is necessary to issue guidelines to the trial Courts in respect of the procedure to be followed while instituting the complaint, issuing process and taking evidence of a person on affidavit with the documents and dealing with the objections, if any, taken by the accused in respect of the documents to be exhibited in the course of recording examination-in-chief and cross-examination of such witness? 11. The leading arguments on the first question were advanced by Mr Mundargi, learned Senior Counsel. At the outset, he submitted that the Division Bench in the judgment in KSL and Industries Ltd case, while addressing the reference made by the learned Single Judge in Writ Petition No. 1228 of 2004, did not consider the scope of both sub-sections (1) and (2) of Section 145. Section 145(2) did not fall for consideration in the said judgment. Moreover, according to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be put on the language of Section 145(2) of the Act. Some difficulties as also prejudice being caused were pointed out in the course of the arguments in respect of exhibiting the documents filed with the affidavit under sub-section (1) of Section 145. According to the learned Counsel for the petitioners, the rights of the accused under the provisions of the Evidence Act will stand violated if affidavit and documents annexed thereto are taken on record and the accused is only asked to cross-examine the witness without considering and deciding the objections to any item of the affidavit and to exhibit the said documents. Most of the learned Counsel appearing for the different petitioners in this group of writ petitions adopted the submissions advanced by Mr. Mundargi, learned senior counsel for the petitioners. Mr. Marwadi, learned Counsel for the petitioners also advanced the argument on the same line. 12. On the other hand, Anne, learned senior counsel appearing in Criminal Writ Petition No.2192 of 2005 in reply to the submissions advanced by the learned Counsel for the petitioners on the first question made the following points:-Firstly, he submitted that Section 145(1) create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e culture of use of cheques and enhancing the credibility of the instrument. The provisions of Sections 138 to 142, however, were found deficient in dealing with dishonour of cheques. It was found that the punishment provided, has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters cumbersome and that the Courts are unable to dispose of such cases expeditiously in a time-bound manner in view of the procedure contained therein. A large number of cases were reported to be pending under Sections 138 in various Courts in the country. 14. Keeping that in view, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act,1881 and to make recommendations as to what changes were needed to effectively achieve the purpose of that section. The Working Group along with other representations from various institutions and organisations made recommendations which were examined by the Government in consultation with the Reserve Bank of India and other legal experts, and a Bill, namely, the Negotiable Instruments (Amendment) Bill, 2001 was introduced in the Lok Sabha on 24.7.2001. 15. The Bill was referred to the Standing Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to those amendments is avoided. All this background or circumstances will have to be taken into consideration while appreciating the arguments advanced by the learned Counsel for the parties and for interpretation of Section 145 of the Act. For better appreciation, it would be advantageous, at this stage, to reproduce Section 145 of the Act which reads thus: 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 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. 17. Before I proceed further, it would be relevant to glance through the judgments of the Supreme Court, cited before me, for the purpose of interpretation of Section 145 of the Act. The Supreme Court in U.P.Bhoodan Yagna Samiti Vs Braj Kishore case (supra) has settled that when one has to look at the intention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer Stowell V. Lord Zouch, is 'a key to pen the minds of the makers of the Act, and the mischiefs which they intend to redress'. 19. Similarly, the observations of a three-Judge Bench of the Supreme Court in Balram Kumawat v. Union of India (2003) 7 SCC 621 made in paragraph 23 may be useful for our purpose. The relevant observations in paragraph 23 read thus: 23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so. Thus, it is clear that for interpretation of the provisions, like the one that falls for my consideration, one must look into the history and object of Legislature. The words of Section 145 of the Act will have to be interpreted bearing in mind the background, circumstances and the problems which the Legislature i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration in the said judgment. In fact, the language of the question referred to for consideration makes it clear that Section 145(2) was very much before the Court. In any case, the ratio of the judgment does not support the contention that the accused has a right to apply to the trial Court to compel the complainant or his witness who has given his evidence on affidavit to enter into the box to be examined in-chief. In paragraph 39 the Division Bench has clearly observed 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. In paragraph 40 while giving directions to accomplish the underlying object of the Act, in clause (b) thereof, the Division Bench has further observed that the witnesses of the complainant and the accused must be made available for cross-examination as and when there is a direction to that effect under Section 145(2). It is thus clear that sub-section (2) was before the Division Bench and the rights created thereunder. I, therefore, do not deem it necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court under sub-section (2), is to call a witness, who has given his evidence on affidavit as provided for under sub-section (1), for putting questions as contemplated under Section 165 of the Indian Evidence Act. Putting questions to the witness by the Court is also an examination of a witness. The examination of a witness by the Court cannot be termed as examination-in-chief or cross-examination or re-examination . It is an independent right conferred on the Court under Section 165 to put questions to the witness in order to discover or to obtain proper proof of relevant facts, in any form at any time. When the court exercise this right, neither party nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. 25. Sub-section (2) also confers right on both, the prosecution and the accused, to examine any person giving evidence on affidavit as to the facts mentioned therein. The phraseology as to the facts contained therein cannot be read to mean that the witness can be called to depose everything that he has stated on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of examination-in-chief is concerned, it can be exercised by the complainant in a case where he has given his evidence (examination-in-chief) on affidavit and filed documents with it, and if the objection raised by the accused is directed towards the mode of proof alleging the same to be irregular and insufficient. If such objection to the document/s is raised, after filing of the document with the affidavit in lieu of examination-in-chief that would enable the party tendering the evidence on affidavit or otherwise to cure the defect and resort to such mode of proof as would be regular. The complainant cannot assume while giving evidence on affidavit that such an objection would be raised though he is expected to be vigilant while filing affidavit to see that no objections are raised. If an objection as to the mode of proof is raised and if the complainant, under Section 145(2) applies for tendering further evidence (examination-in-chief) by stepping into witness box to cure such defect and resort to such mode of proof as would be regular, the Court will have to allow the complainant to give further examination-in-chief to cure the defect before the cross examination begins. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompelling him to go to the court and depose if the evidence 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s true that Section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in its wisdom may not have thought it proper to incorporate a word accused with the word complainant in sub-section (1) of Section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India. The exception is, however, made under the provisions contained in Section 315 and 316 of the Code. Both these provisions protect the rights of the accused, who desires to be a witness, as envisaged under the Constitution. Section 315 of the Code speaks of the accused person to be competent witness, whereas Section 316 provides that no influence to be used to induce disclosure. 30. A plain reading of the provisions contained in Sections 315 and 316 of the Code clearly demonstrates that accused could be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. However, he cannot be called as a witness except on hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amended provisions of Section 145 clearly affect substantive rights of the accused contained in Chapter XX and XXI and Section 461 of the Code as well as the rights of accused under various provisions of the Evidence Act relating to examination of the witnesses. 33. On the other hand Mr.Aney, learned senior counsel appearing for the complainant in that case submitted that this question is no longer res integra and it has been answered by this Court in M/s.Indraprastha Holdings Ltd. v. Shri Vijay J.Shah and Anr. CDJ 2006 BHC 149. He further submitted that where the Amending Act is to substantive law it operates prospectively whereas any amendment to procedural law it must operate retrospectively unless a contrary intention is seen in the amending Act. In support of this proposition, he too placed reliance upon the judgments of the Supreme Court in Hitendra Thakur's case and on Rajendrakumar v. Kalyan . Mr.Aney further submitted that the Code of Criminal Procedure and the Evidence Act are general laws and are statutes primarily of a procedural or enabling nature, and the rights created thereunder can always be altered or changed by the Legislature specifically intended for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstante clause is to exclude anything adverse that may be contained in the Code while interpreting and implementing the amended provisions of Section 145. The Code of Criminal Procedure and the Evidence Act are general laws and the rights created thereunder cannot be termed as substantive rights or vested rights of substantive nature causing any prejudice whatsoever to the accused by the Amending Act of 2002 and in particular Section 145. A bare perusal of Section 145 show that both the sub-sections (1) and (2) as introduced by the Amending Act of 2002 fall within the realm of procedural law, and hence they would be applicable to the pending cases since there is no vested right in an accused in the procedural law. Moreover, the object which influenced the Parliament to introduce the provisions of Section 145 cannot be overlooked. The observations of the Supreme Court in Rajendra Kumar's case (supra) are also useful. The Supreme Court in that case has observed that some differentiation exists between a procedural statute and statute dealing with substantive rights and in the normal course of events, matters of procedure are presumed to be retrospective unless there is an express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of the provisions of the Evidence Act, the Supreme Court held that so long as law regulate right of trial and the right of accused to defend himself, no fault could be found in providing a procedure different from ordinary law. It is thus clear that looking at the matter from any angle it cannot be said that by introducing the provisions of Section 145 substantive rights of the accused are taken away and, therefore, these provisions cannot be given retrospective effect. The question (B) framed in paragraph 2 of the judgment accordingly stands answered in the affirmative. 37. In writ petition No.2192 of 2005 the accused, by filing independent application, had prayed for de-exhibiting few documents filed by the complainant P. W.1 with his affidavit in lieu of examination in chief. That application was rejected by the learned Magistrate on merits, and while so doing it was observed that merely because the documents are exhibited does not mean their contents are proved and accused can raise objections as to their admissibility at the time of final arguments. It may be noticed that the affidavit and the documents were filed on 30.3.2005 and copies thereof were served on the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panchal's case is adopted. 39. In R.V.E. Venkatachala's case the Supreme Court was dealing with the judgment of the High Court by which two documents, namely, A-30 and A-34 which were photo copies of the order passed by the Assistant Commissioner H.R. C.E. (Admn.) Department, Coimbatore and rent agreement executed between the appellant and tenant-respondent therein, were held to be inadmissible in evidence. The High Court, by entering into a question of admissibility of the evidence of the aforesaid, two very material pieces of the documentary evidence which were admitted in the evidence without any objection when they were tendered in the evidence and taken into consideration by the two courts below while evaluating the evidence and recording the findings of facts, excluded the documents from consideration. In the light thereof the Supreme Court was considering whether it was permissible for the High Court to do so. Admittedly, in that case the documents were tendered in the evidence and marked as exhibits without any objection by the defendant. The Supreme Court while dealing with the aforementioned situation made the following observations: Ordinarily any object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court. It is clear from the observations made by the Supreme Court that the objection should be taken before the evidence is tendered and the documents are marked as exhibit. The objection that a particular document should not have been admitted in the evidence or mode adopted for proving the document was irregular or insufficient cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. If objection about the mode of proof, being irregular, insufficient in respect of any document/s is taken at the appropriate point of time, the Supreme Court, in this judgment, states that it should be decided then and there only so that, it would enable the party tendering evidence to cure the defect and resort to such mode of proof as would be regular. The Supreme Court, therefore, holds that the omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should be trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recastor or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. 13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bipin Panchal's case is followed scrupulously. It is true that where an objection is directed towards the mode of proof alleging the same to be irregular and insufficient, the Court can take its own decision whether to decide it then and there or to defer it to be decided in the final judgment by marking the document for identification. In either case opportunity will have to be given to the complainant who has given his evidence on affidavit, before his cross examination begins, to lead further examination-in-chief to cure the defect and resort to such mode of proof as would be regular. If the Court finds that the decision on such objection can also be deferred to be decided at the stage in the final judgment, it would be open for the Court to do so in view of the judgment of the Supreme Court in Bipin Panchal's case. 42. It is true that in Writ Petition No.2192 of 2005 the written application - Exhibit-18 on page 31 of the petition, for de-exhibiting certain documents, was filed after five months i.e. on 31.8.2005, after filing of the affidavit in examination-in-chief and marking all the documents as exhibits by the Magistrate. However, I am told that cross examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 482 of the Code before the High court challenging issue of process or quashing of the complaint on variety of grounds. It is also common experience that the complainant, if the complaint is against a company, arraign all the directors as accused in the complaint as a result of which revision or writ petition by the accused become inevitable and if such petitions are filed the proceedings get further delayed due to interim orders passed in revision or writ petitions. It is also observed that the complainant makes avoidable averments and, out of anxiety, annex irrelevant documents to the complaint which also give rise to revisions and writ petitions disputing such facts or documents. 44. The service of summons on the accused person/s consumes lot of time for variety of reasons. If the accused are more in number and they are residents of different places within the jurisdiction of different police stations service of summons takes long time. In some cases, I am informed, the service of summons takes years. For service of summons, the complainant requires to depend on the police machinery. The police stations, for variety of reasons take long time to serve the summons on accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the service, such service of summons may be treated as a good service and in that case the Court can proceed with the case without awaiting service of summons through Police. (d) The Magistrate issuing summons to the accused or a witness must direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain as provided for in Section 144(1) of the Act. (e) It is also open for the Court, in a given case, to use the police staff attached to the Court, outside Court working hours, to serve the summons on accused or witness residing within the jurisdiction of the Court. (f) Where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or courier services that the accused or the witness refuse to take delivery of summons has been received, the Court issuing summons may declare that the summons has been duly served as provided for in Section 144(2) of the Act. (g) The Complainant while filing the complaint under Section 138 of the Act should avoid adding unnecessary person/s as accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business for gain as provided for under Section 144(2) of the Act. (l) The complainant should, as far as possible, file copies of all the relevant and necessary documents with the complaint duly attested/endorsed by him or his advocate as true copies and keep originals ready for perusal of the Court at the stage of verification and issue of process. The Courts should, avoid to keep original documents on record at that stage. (m) The Court must call upon the accused or his pleader, as provided for under Section 294 of the Code, to admit or deny the genuiness of the documents, other then the documents which have presumtive value in law. That would help the Complainant to know which of the documents he would have to prove by adopting such mode, as may be advised, during his own or his witnesses' examinations in chief on affidavit. The procedure under Sections 294, should be followed before the complainant files his affidavit under Section 145(1) of the Act. (n) The Complainant should avoid filing of unnecessary and irrelevant documents either with the complaint or at any subsequent stage including the stage of evidence being recorded orally or on affidavit. He should, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely as exhibit or for identification, as case may be, to be decided at the stage of final judgment, and direct the accused to cross examine the witness without prejudice to such objections. (q) If the objection is with regard to the mode of proof in respect of any of the document/s (other than the documents which have presumptive value in law) alleging the same to be irregular or insufficient the court should allow the Complainant on his application made under sub Section (2) of Section 145, before his cross examination begins, to lead further evidence by stepping into witness box to cure the defect and adopt such mode as would be regular and sufficient. The cases where the Complainant does not make application under section 145(2), the Court should mark it for identification and defer the decision on such objection to be decided at the stage of final judgment. (r) If the accused desires to be a witness for the defence and if he makes an application seeking such permission in writing to the Magistrate as contemplated under Section 315 of the Code he may be allowed to tender his evidence on affidavit. Once the accused is allowed to tender his evidence on the affidavit it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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