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TMI Blog2012 (2) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... by the first respondent/accused and supplied its products which was documented in the invoice. On delivery of the material indented by the accused, the transaction was complete. The accused/firm was liable to pay the value of the products so supplied and delivered. The accused acknowledging its liability to pay Rs. 1,50,000/- issued the impugned cheque which on presentation to the Bank was dishonoured necessitating issuance of statutory notice raising a demand for paying the amount covered under the cheque and also interest at 24% p.a. 3. The notice was duly served on the accused but they failed to comply with the demands made therein resulting in filing of the complaint before the jurisdictional Magistrate who took cognizance of the offences alleged and summoned the respondents/accused. 4. The accused denied the substance of allegation formulated against them for offences under Section 138 of the N.I. Act. 5. In the trial that ensued, the complainant represented itself through its attorney and Manager Mr. C.P. Suresh Kumar. Thus, Mr. C.P. Suresh Kumar filed sworn statement in the form of an affidavit in examination-in-chief before the Trial Court on 17.02.2006 and then ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Assailing it, complainant is in appeal under Section 378(4), Cr.P.C. 9. Learned counsel for the appellant assails the impugned judgment on several grounds amongst which the following grounds are main contentions: I) The learned trial judge has seriously erred in ignoring the evidence tendered by PW1-C.K. Sureshkumar through whom complainant had produced Exs.P1 to P12 including the impugned cheque, intimation from the bank and also statutory notice issued under Section 138 of the N.I. Act. II) PW2-B.K. Swamy was permitted by the court itself to represent the complainant substituting PW1-Sureshkumar. Therefore, B.K. Swamy's evidence was continuation of the evidence led by PW1 and hence, the trial court could not have held complainant had led no evidence through PW2. III) Section 145 of the N.I. Act permits the complainant to produce evidence personally or through affidavit which the complainant had done. Therefore, the evidence of the complainant through affidavit filed by PW1 was sufficient material on record to establish the charge against the respondent under Section 138, N.I. Act, irrespective of fact he did not subject himself for cross examination. IV) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the complaint. Alternatively, he submits, even if it is held that the complainant had produced Exs.P1 to P12 in evidence and they were on record, accused has been deprived of a valid right in law to dislodge the incriminating aspects appearing in such evidence by testing it in cross-examination. Since the accused was deprived of such opportunity of cross-examining there was no legal evidence and the only logical conclusion is that the complainant had not established the charge against the accused in the manner known to law. 13. Sri Pramod Kathavi would further submit even if such evidence Is taken on record, in view of the decision of the apex court in the case of Krishna Janardhana Bhat v. Dattatreya G. Hegde (AIR 2008 SCW 738), accused had only to show by preponderance of possibilities that the case as made out by the complainant did not establish the charge under Section 138, N.I. Act. In other words, the issue raised is, merely because there is an element of statutory presumption engrafted in Section 118(1) and Section 139, N.I. Act, it does not warrant conviction unless facts constituting ingredients of offence under Section 138 of N.I Act. 14. In support of his conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will represent the company and how the company will be represented in such proceedings, is not governed by the Code, but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result the company becomes a de jure complainant and its employee or other representative, representing it in criminal proceedings, becomes de facto complainant. Thus, in every complaint, where the complainant is an incorporeal body, there is a complainant-de jure, and a complainant-de-facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to Section 200 of the Code will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' It no doubt permits evidence of the complainant may be given by him on affidavit, it is subject to all exceptions and is not without any riders. 22. Sub-section (2) of Section 145 is relevant which mandates 'the court may, if it thinks fit, and 'shall' on application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.' It leaves no scope for doubt that mere filing of affidavit by the complainant is no evidence in law if such person(witness) fails to depose to the facts contained in the affidavit when/called upon to do so. The court may, if it thinks fit, but 'shall' on the application (which could be written application or even oral as the section does not insist on written application) of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. Therefore, discretion is given to the court if it thinks fit to summon a person who has filed affidavit to examine him as to the facts contained therein. This discretion of the court is capped with a direction in subsection (2) itself by use of the word 'shall& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal procedure respectively, and, in the absence of any such law, by the discretion of the court. Section 136 deals with admissibility of evidence which confers on the judge special power. It reads thus. S. 136. Judge to decide as to admissibility of evidence: 'When either party proposes to give evidence of any fact, the judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.' It clarifies that every statement by a witness even given on oath before the court is not evidence in law unless the court admits such evidence. 25. What is the meaning of 'examination-in-chief and cross-examination of a witness is spelled out in Section 137. It reads 'the examination of a witness by the party who calls him shall be called his examination-in-chief. The examination of a witness, by the adverse party shall be called his cross-examination.' 26. Section 138 postulates 'a witness 'shall' be first examined-in-chief, then (if the adverse party so desires) cross-examined, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extreme case, if he had developed adverse animus to the complainant, even then his presence could have been secured by issuing coercive process provided under the Cr.P.C. 30. Alternatively, complainant had a very easy and convenient course to subject PW2 to fresh examination in chief and through him to mark the documents which were on record. The contention of the learned counsel for the appellant that it is legally impermissible is hardly sustainable for the simple reason, what PW1 spoke was to mark documents which were not his personal effects, but of the complainant company-a juristic person in which he had no personal claim. The documents were already on record and in the event of change of person representing the complainant, the successor could have referred to the very same documents in his evidence as there is no legal impediment or restriction to receive in evidence documents which are on record and admissible. 31. That apart, there is no bar in the Evidence Act for any witness to refer to the documents filed for the purpose of tendering evidence. This could be found in the provisions of Sections 160 and 161 of the Evidence Act which are extracted hereunder: 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in establishing the charge against the accused under Section 138, N.I. Act. There could be no two opinions that though the proceedings are quasi-criminal, but the ultimate effect is penal in nature. Therefore, when a person is liable to be sentenced for imprisonment upto two years, complainant cannot be given any concession except to prove the charge beyond reasonable doubt. To prove the charge beyond reasonable doubt, evidence must be the clincher, clear, establishing; all the ingredients constituting the offence under Section 138. When the complainant's evidence did not establish the transaction, nor did it establish that the cheque was issued in respect of an existing debt or legal liability, mere issuance of it and its dishonour does not constitute the offence. 35. In this appeal, a request is made to remand the case to the trial court for fresh evidence. It is not acceptable because in the fact situation, Section 167 of the Evidence Act would come into play which mandates: 167. No new trial for improper admission or rejection of evidence-The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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