TMI Blog2019 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Petition allowed. - CrMMO No. 215 of 2019 - - - Dated:- 28-11-2019 - Mr. Justice Sandeep Sharma, Judge For the Petitioner : Mr. Arun Sehgal, Advocate. For the Respondent : Mr. Sanjeev Kumar Suri, Advocate. ORDER SANDEEP SHARMA, J. (ORAL) Instant petition under S.482 CrPC read with Art. 227 of the Constitution of India, is directed against order dated 22.1.2019 passed by learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh in Case No. 270 of 2015, whereby an application under S.145(2) of the Negotiable Instruments Act (hereinafter, Act ) having been filed by the petitioner-accused (hereinafter, accused ) seeking permission to examine/cross-examine the complainant, came to be dismissed. 2. Precisely the facts, as emerge from the record are that the respondent-complainant (hereinafter, complainant ) filed a complaint under S.138 of the Act in the court of learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh, alleging therein that the accused took ₹ 1.00 Lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed further contended that S.145 (2) of the Act nowhere provides for assignment of reasons, if any, in the application, praying therein to provide opportunity to cross-examine complainant. 5. Per contra, Mr. Sanjeev Kumar Suri, learned counsel for the complainant supported the impugned order passed by learned Court below, and contended that since no plausible explanation ever came to be rendered on record by the accused for cross-examination of the complainant, application having been filed by him rightly came to be dismissed. 6. I have heard learned counsel for the parties and perused the material available on record. 7. The question, which needs determination in the extant proceedings is that whether in terms of S.145(2) of the Act, it is mandatory for the applicant, seeking cross-examination of the complainant, to assign reason(s) for recalling/reexamination/ cross-examination of the complainant. This issue has been elaborately discussed by this Court in Anu Sharma (supra), relevant paragraphs of which are reproduced hereunder: 5. At this stage, it would be apt to reproduce provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read in evidence, subject to all just exceptions, meaning thereby nothing inadmissible in evidence i.e. irrelevant facts or hearsay evidence would be taken as evidence even though stated on affidavit. 9. True it is that the plea of the accused that on being summoned under S.145(2), complainant or any of its witnesses, whose evidence is on affidavit, must be made to depose in examination-in-chief, all over again, cannot be accepted because, acceptance of the same would amount to duplication. S. 137 of the Evidence Act, nowhere defines examine to mean and include three kinds of examination of witnesses; it simply defines examination-in-chief, cross-examination and re-examination, whereas, S.145(2) provides that court may at its discretion, call a person giving his evidence again to be examined as to facts contained therein. 10. S.145(2) expressly provides that a court may, if it thinks fit, summon and examine any person, giving evidence on affidavit. Affidavit filed by the person, who is summoned is already on record in the nature of examination-in-chief, hence, on being summoned on the application made by the accused, deponent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion must be understood in its literal sense and the High Court was in error in resorting to purposive interpretation of the provision. In support of the submission he relied upon decisions of this court in Dental Council of India vs. Hari Prakash and Ors., (2001) 8 SCC 61 and Nathi Devi vs. Radha Devi, (2005) 2 SCC 271. 32. Mr. Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106/2007 also joined Mr. Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be departed from, particularly when the words of the statute are clear and unambiguous. He relied upon the decision in Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2 SCC 230. 34. We are completely unable to appreciate the submission. The plea for a literal interpretation of section 145(2) is based on the unfounded assumption that the language of the section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t allow the accused to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission. Hon'ble Apex Court in the aforesaid judgment also took note of the its earlier judgment rendered in Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, wherein court observed that 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 , would mean for the purpose of cross-examination. 13. Hon'ble Apex Court held that the affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post-summoning stage. In other words, there is no necessity to recall and re-examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed either on an application made by the accused or under Section 145(2) of the Act or suo motu by the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant. The question is whether the Court can dispense with the appearance of the complainant, instead, to take steps to accept the affidavit of the complainant and treat the same as examination-inchief. Section 145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The Court has to accept the same even if it is given by way of an affidavit. Second part of Section 145(1) provides that the complainant s statement on affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings. Section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the Court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, Court may fix up the case at an early date and ensure day-to-day trial. 17. Section 143 empowers the Court to try cases for dishonour of cheques summarily in accordance with the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, there is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 14. It is quite clear from the aforesaid exposition of law that though there is no necessity to recall and reexamine complainant but Magistrate can pass a specific order to recall the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , taken note herein above, rather, this would help the court below to effectively adjudicate upon the controversy inter se parties. 8. In the aforesaid judgment, this court has specifically ruled that the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/re-examination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf, as such, order passed by learned Court below, rejecting the application of the accused for examination/cross-examination of the complainant is against the provisions of S.145(2) and deserves to be rectified by this Court. Moreover, no prejudice, whatsoever, would be caused to the complainant, in case complainant and/or his witnesses are examined/crossexamined, rather, this would enable court below to render proper adjudication of the controversy inter se parties. 9. Consequently, in view of detailed discussion made herein above, present petition is allowed. Order dated 22.1.2019 passed by learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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