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TMI Blog2019 (9) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging therein that a Term Loan facility was availed by the accused amounting to Rs. 5,75,000/- on 17.12.2014 for the purchase of Tractor. Entire loan amount was paid by the complainant to the dealer. Accused opened account No. JT-72 with the Bank and he, with a view to discharge his liability on account of loan availed by him, issued Cheque No. 656081 on 12.7.2016, amounting to Rs. 5,90,000. However, the fact remains that the aforesaid cheque subsequently came to be dishonoured on account of insufficient funds in the account of the accused. Since the accused, despite having received legal notice served upon him, failed to make good the payment, complainant-Bank initiated proceedings under S.138 of the Act. 3. During proceedings of the case, an application under S.145(2) of the Act seeking therein permission to cross-examine the complainant and complainant's witnesses on behalf of the accused, came to be filed, however, such application (Annexure P-2) was rejected by Court below vide order dated 2.2.2019 (Annexure P-3), on the ground that the accused has not mentioned as to what was legally due from him to the Bank or that the amount mentioned in the cheque was not legally reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of affidavit. No doubt, S.145 (1), as has been taken note herein above, provides that notwithstanding anything contained in the Code, evidence of the complainant can be given by him on affidavit, but this provision further provides that the evidence given by way of affidavit may be read subject to all just exceptions in evidence, in any enquiry, trial or proceedings under the said Code. 8. S.145, with its non obstante clause, as taken note herein above, though provides for evidence of the complainant by way of affidavit but, certainly, affidavit of the complainant can be read in evidence, subject to all just exceptions, meaning thereby nothing inadmissible in evidence i.e. irrelevant facts or hearsay evidence would be taken as evidence even though stated on affidavit. 9. True it is that the plea of the accused that on being summoned under S.145(2), complainant or any of its witnesses, whose evidence is on affidavit, must be made to depose in examination-in-chief, all over again, cannot be accepted because, acceptance of the same would amount to duplication. S. 137 of the Evidence Act, nowhere defines "examine" to mean and include three kinds of examination of witnesses; it simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoned under section 145(2) at the instance of the accused must begin his deposition with examination-in-chief, before he may be cross-examined by the accused. In this regard he submitted that section 145 did not override the Evidence Act or the Negotiable Instruments Act or any other law except the Code of Criminal Procedure. He further submitted that the plain language of section 145(2) was clear and unambiguous and was capable of only one meaning and, therefore, the provision must be understood in its literal sense and the High Court was in error in resorting to purposive interpretation of the provision. In support of the submission he relied upon decisions of this court in Dental Council of India vs. Hari Prakash and Ors., (2001) 8 SCC 61 and Nathi Devi vs. Radha Devi, (2005) 2 SCC 271. 32. Mr. Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106/2007 also joined Mr. Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be departed from, particularly when the words of the statute are clear and unambiguous. He relied upon the decision in Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Indian Bank Assn. v. Union Bank of India (2014) 5 SCC 590, wherein Hon'ble Apex Court, while taking note of the aforesaid judgment rendered in Mandvi Cooperative Bank (supra) reiterated that even if Legislature in their wisdom have deemed it not appropriate to incorporate "accused" with the word "complainant" in S.145 (1), it does not mean that the Magistrate could not allow the accused to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission. Hon'ble Apex Court in the aforesaid judgment also took note of the its earlier judgment rendered in Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, wherein court observed that the words, "examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of sub-section (2) of Section 145 of the Act", would mean for the purpose of cross-examination. 13. Hon'ble Apex Court held that the affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act", in our opinion, would mean for the purpose of cross-examination. The provision seeks to attend a salutary purpose." 16. Considerable time is usually spent for recording the statement of the complainant. The question is whether the Court can dispense with the appearance of the complainant, instead, to take steps to accept the affidavit of the complainant and treat the same as examination-inchief. Section 145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The Court has to accept the same even if it is given by way of an affidavit. Second part of Section 145(1) provides that the complainant's statement on affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings. Section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the Court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, Court may fix up th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 14. It is quite clear from the aforesaid exposition of law that though there is no necessity to recall and reexamine complainant but Magistrate can pass a specific order to recall the complainant. Such an order is to be passed either on an application ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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