TMI Blog2009 (5) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... us aggrieved by and dissatisfied with a judgment and order dated 9-5-2008 passed by a learned Single Judge of the High Court of Delhi at New Delhi in Criminal M.C. No. 1522 of 2008. 3. Respondent filed a complaint petition in the Court of Chief Metropolitan Magistrate, Delhi on or about 7-6-2004 which was marked as Criminal Complaint Case No. 882/1 of 2004 for commission of an alleged offence under section 138 of the Negotiable Instruments Act, 1881 (for short, the Act ). Pre-summoning evidence by the complainant was recorded by way of an affidavit. Cognizance of the offence was taken and summons was directed to be issued by an order dated 9-6-2004. Post-summoning evidence was also adduced by the complainant on 26-3-2007 by way of an affidavit. 4. It now appears that respondent examined himself and was cross-examined at length. His cross-examination started 12-9-2008. It runs into nine typed pages. Indisputably, prior to offering himself for cross-examination, appellant proved his affidavits which were marked as Exhibits CW1/A to CW1/1. A large number of questions were asked to the deponent on the contents of the affidavits. 5. It, however, appears that an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y being over was not brought to the notice of this Hon ble Court and was hidden from this Hon ble Court. The petitioner has got opportunity to examine the respondent and has already availed the same on the point sought to be considered in Special Leave Petition No. 7487 of 2008 filed by the petitioner. 6. That the respondent has also been examined by the counsel of the accused on 16-7-2008 and 30-8-2008 in another Civil Suit No. 325/06 filed by the respondent for the same matter in the Court of Additional District Judge at Tis Hazari Courts. A certified copy of the same is enclosed - Annexure R-2. 7. That even petitioner has been examined partly in the said Civil Suit No. 325/06 on 19-2-2008 in the Court of Additional District Judge at Tis Hazari Courts. A certified copy of the same is enclosed - Annexure R-3. 8. After 19-2-2008, the appellant had not been attending the proceedings for more than 6 months resulting into imposition of costs and closure of his right of cross-examination on 10-9-2008. A certified copy of the same is enclosed - Annexure R-4. 9. The petitioner has not been presenting himself even after the ex parte order in the aforesaid civil suit and seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable : Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made, authorizing the evidence of such witness to be given by affidavit." The relevant portion of Order XVIII Rule 4 reads as under : "4. Recording of evidence. (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence : Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it." A Three Judge Bench of this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch person to the Court for the purpose of being examined." (p. 582) 13. Examination in terms of the provisions of the Indian Evidence Act envisages examination-in-chief, cross-examination and re-examination, as would appear from sections 137 and 138 thereof. A person whose evidence has been taken by way of an examination-in-chief by way of affidavit, keeping in view the statutory scheme noticed both in the Code of Civil Procedure as also in the Code of Criminal Procedure, there cannot be any doubt whatsoever that a person intends to summon a witness who had filed his affidavit would be only for the purpose of his cross-examination. It is, however, possible that a party examining his own witnesses including the complainant may not affirm an affidavit or would like to examine himself in Court. Sub-section (2) of section 145 as also sub-section (2) of section 296 of the Code of Criminal Procedure, in our opinion, should be interpreted in that manner. 14. Our attention has furthermore been drawn to a decision of this Court in Sushil Kumar Sharma v. Union of India [2005] 6 SCC 281, wherein this Court held as under : "16. As observed in Maulavi Hussein Haji Abraham Umarji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the Court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-examined and upon completion of his evidence, he may be re-examined. Thus, 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, in our opinion, would mean for the purpose of cross-examination. The provision seeks to attend a salutary purpose. The statements of objects and reasons for enacting the said provision, inter alia, read, as under : "Keeping in view of the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely: ( i ) to ( iii )****** ( iv )to prescribe procedure for dispensing with preliminary evidence of the complainant; ( v )******. ( vi )to provide for summary trial of the cases under the Act with a view to speedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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