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2005 (2) TMI 885 - BOMBAY HIGH COURTDishonour of Cheque - Procedure to try complaint u/s 138 of the Negotiable Instruments Act, 1881 - Scope of Section 145 - evidence by way of affidavit - permission to cross examine the complainant - whether the Court can dispense with his / her appearance and instead, take affidavit of the complainant and treat the same as examination in chief - HELD THAT:- The petitioners are justified in their assertion that the newly added provisions of the Act in question would be rendered nugatory if complaints filed under Section 138 of the Act are not disposed of expeditiously. The judicial system itself cannot acquire efficacy, credibility or respectability if a complaint of this nature takes five to seven years before it is finally adjudicated by the Metropolitan Magistrate. It has become imperative for us to take all necessary steps to ensure that these complaints are disposed of expeditiously and unscrupulous people do not take undue advantage of the pendency of these complaints before the Courts. Undoubtedly, dishonoured of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee, and the entire credibility of the business transaction within and outside the country suffers a serious set back. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment, specifically incorporated the provisions of Sections 138 to 142 of the Act. The provisions of Section 138 of the Act would be attracted only when the cheque has been issued for the discharge of any debt or other legally enforceable liability. The maker of the cheque is not liable for prosecution if the cheque is given by way of a gift, present or donation and is dishonoured. Subsection (1) of Section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of subsection (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. 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. All these petitions are accordingly disposed of. Rule is partly made absolute in Criminal Writ Petition. All intervention applications stand disposed of.
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