TMI Blog2019 (9) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... aning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf. Petition allowed. - CrMMO No. 216 of 2019 - - - Dated:- 7-8-2019 - Mr. Justice Sandeep Sharma, Judge. For the Petitioner : Mr. Prem P. Chauhan, Advocate. For the Respondent : Mr. G.S. Rathour, Advocate, Advocate. SANDEEP SHARMA, J. (ORAL) Being aggrieved and dissatisfied with order dated 2.2.2019 passed by learned Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh in Case No. 295-IV/16, whereby an application under S.145(2) of the Negotiable Instruments Act (hereinafter, Act ), having been filed by the petitioner-accused (hereinafter, accused ), seeking therein permission to crossexamine the respondent-complainant (hereinafter, complainant ), came to be dismissed, accused has approached this Court in the instant proceedings filed under S.482 CrPC, praying therein to set aside the impugned order and permit the accused to crossexamine the complainant. 2. Necessary facts, as emerge from the record are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 6. Careful perusal of S.145(1) reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the evidence of the complainant may be given by him on affidavit and same, subject to all just exceptions can be read in evidence in any enquiry, trial or other proceeding under the said Code. S.145(2) further provides that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 7. Close scrutiny of the aforesaid provisions contained in S.145(2) clearly reveals that it is in two parts, first part provides that the court, of its own, may summon accused to examine him with regard to the contents contained in the affidavit given by him in his evidence, whereas second part casts a duty upon the court to summon a person, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank Ltd. vs. Nimesh B. Thakore , (2010) 3 SCC 83: 30. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760/2006 pointed out that sub-section (2) of section 145 uses both the words, may (with reference to the court) and shall (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. 31. Mr. Ranjit Kumar referred to section 137 of the Indian Evidence Act, that defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of section 145(1) and having regard to the object and purpose of the entire scheme of sections 143 to 146. The scheme of sections 143 to 146 does not in any way affect the judge's powers under section 165 of the Evidence Act. As a matter of fact, section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 14. The scope of Section 145 came up for consideration before this Court in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and the same was explained in that judgment stating that the legislature provided for the complainant to give his evidence on affidavit, but did not provide the same for the accused. The Court held that even though the legislature in their wisdom did not deem it proper to incorporate a word accused with the word complainant in Section 145(1), it does not mean that the Magistrate could not allow the complainant to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission. 15. This Court while examining the scope of Section 145 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of summons- ease shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. 263. Record in summary trials.-In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely:- (a) the serial number of the case: (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub- section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding; (i) the sentence or other final order (j) the date on which proceedings terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking therein permission to cross-examine the accused with regard to contents contained in the affidavit tendered by him in evidence. But, as has been taken note herein above, application filed by accused came to be dismissed on the ground that the accused has not mentioned as to what was legally due from him to the Bank or what amount mentioned in the cheque was not legally recoverable from him at the relevant time, which reasoning given by learned Court below does not appear to be plausible, in view of the specific stand taken by accused in his application filed under S.145 (2), wherein he has stated that the accused issued blank cheque as security to the complainant, but complainant filled up wrong amount in the said cheque and subsequently concocted a false story with a view to grab money from the accused. Accused specifically mentioned in the application that he wants to cross-examine complainant s witnesses, who have given evidence on affidavit to protect his interest as well as to bring truth before the court. 16. Having carefully perused aforesaid plea raised by accused in the application, this court is not in agreement with the findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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