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TMI Blog2020 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... t the complaint case is pending since 2014 and the applicant has filed a detailed affidavit of evidence before the trial Court which can be used as examination-in-chief of the applicant. If the respondent who is complainant therein wants to crossexamine the applicant, he can apply before the trial Court for calling the applicant for cross-examination. In case the applicant failed to appear before the trial Court for cross-examination, the Court may proceed further presuming that the applicant intentionally not appearing before the Court for cross-examination and the value of such affidavit can be considered at the time of final adjudication of the case. Petition allowed. - M.Cr.C. NO.10709/2020 - - - Dated:- 27-8-2020 - HON.SHRI JUST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant filed an application under Section 145 of N.I. Act for permitting him to file affidavit of chief examination (Annexure-P/2). The respondent filed reply of this application and prayed to dismiss that application and to direct the applicant to appear personally before the Court for adducing the evidence. 3. Learned trial Court after hearing both the parties, passed impugned order dated 14/1/2020 and after relied upon the judgment of this Court in the case of Suresh Vs. Ashok, 2008(2) MPHT 58 and the judgment of Hon ble Apex Court in the case of Mandvi Co-operative Bank Limited Vs. Nimesh B. Thakore, 2010 (2) MPHT 397 (SC) dismissed the application filed by the applicant who was accused therein. 4. Being aggrieved by that order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given :- 23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit of the witnesses of accused and if there is a clear direction of the trial Court for filing the affidavit to the accused, then accused is permitted to give evidence on affidavit. 9. No doubt, in the case in hand, the applicant being accused filed an application under Section 145 of N.I. Act seeking permission for filing of affidavit. The applicant did not directly submit affidavit. Now the Court was having an option whether to permit the applicant (accused) for giving the evidence on affidavit. 10. Hon ble Apex Court in the case of Meters and Instruments Private Limited and another Vs. Kanchan Mehta, (2018) 1 SCC 560 held that trial under Section 138 of N.I. Act is of summary proceeding nature, it should be completed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence on affidavit or not. However, learned trial Court without considering the judgment passed by Hon ble Apex Court in the case of Indian Bank Association and others (supra), rejected the prayer of the applicant for giving evidence on affidavit on the basis of the judgment passed in the case of Mandvi Co-operative Bank Limited (supra). 14. This Court is of the view that the complaint case is pending since 2014 and the applicant has filed a detailed affidavit of evidence before the trial Court which can be used as examination-in-chief of the applicant. If the respondent who is complainant therein wants to crossexamine the applicant, he can apply before the trial Court for calling the applicant for cross-examination. In case the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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