LAW
relating to Section 145 (2) OF The Negotiable Instruments Act
In the complaints relating to cheque bouncing cases, upon framing of
notice u/s 251 of Cr.PC, the accused is called upon to specify, if the accused
in order to buttress their points, shall be seeking cross examination of
complainant witnesses or not? The accused, if it indeed seeks to examine the
complainant witness may file application to that effect and also the Court of
Magistrate suo moto may direct the complainant
witnesses to be cross examined. It is necessary, in view of the fact that the
section 138 of Negotiable Instruments Act entailed the punishment of imprisonment
upto two years and/ or fine or both and therefore, the offence u/s 138 of Negotiable
Instruments Act can no longer be treated as summary trial case, rather , it may
be treated as summon trial case and hence, cross examination of complainant
witnesses may be necessary. It is often observed that the controversy revolved
around the fact that whether the complainant shall have to file evidence affidavit
again or the affidavit evidence tendered during pre-summoning complaints cases
shall be sufficient and may be read in post summoning stage as well. All such aspects
are now settled by different judicial precedents and the same shall be
deliberated below.
Before going further, however, since, the aspect of cross examination of complainant
witness finds mention in section 145 of Negotiable Instruments Act, more particularly
in clause (2) of the Section 145, therefore, it may be for ease to reproduce the
section 145 of Negotiable instruments Act. The same is as under:
145.
Evidence on affidavit.—
(1) Notwithstanding anything contained
in the Code of Criminal 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.
The Himachal Pradesh High Court in a matter captioned as Jagdeep Singh vs Ramesh Singh Cr M M O No. 390 of 2019 has dealt with the penumbra of Section 145(2) of Negotiable Instruments Act.
In Jagdeep Singh (Supra) during pendency of the proceedings, the accused
moved an application under Section 145(2) of the Act, seeking
therein permission to cross-examine the complainant stating therein that a
false case has been planted by the complainant against him. Learned Court
below, vide order dated 22.1.2019, dismissed the aforesaid application, and while
dismissing the application, the Court observed that bare assertion of the
accused that a false case has been planted against him, is not sufficient to
allow his prayer for examination/cross-examination of the complainant. The
order passed was ld Magistrate was thus impugned before the High Court of
Himachal Pradesh.
The question, before the high court
was therefore to ascertain the correct legal position as to 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/re-examination/cross-examination
of the complainant. The high court had noted that careful perusal of
Section 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. The Section
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.
It was further held that if the
aforesaid provision is closely scrutinized , section 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, who has given evidence by way of affidavit, if
application is made for this purpose by the opposite party. Aforesaid provision
nowhere suggests that a party making application under this provision of law,
is required to assign reasons for summoning the person, who has given evidence
by way of affidavit. No doubt, Section 145 (1), as has been taken note
herein above, provides that notwithstanding anything contained in the Code,
evidence of the complainant can be given by him on affidavit, but this provision
further provides that the evidence given by way of affidavit may be read
subject to all just exceptions in evidence, in any enquiry, trial or
proceedings under the said Code.
Section 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 the affidavit
(complainant or any of its witnesses) can only be subjected to
cross-examination as to the facts stated in the affidavit and may not be called
upon to file another affidavit for the purpose of cross examination.
The further
reliance in this context may be have from a judgment rendered by Hon'ble Supreme
Court in Mandvi Cooperative Bank
Ltd Vs Nimesh B. Thakore (2010) 3 SCC 83. The para 30 , in this regard
shall be of importance:
"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”.
What Section 145
(2) of the Act reveals is just that, 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 Section
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. If Section
145 (2) is perused, it expressly provides that the court may, if it thinks
fit, summon and examine any person giving evidence on affidavit. The affidavit
of the person so summoned that is already on the record is obviously in the
nature of examination-in-chief. Hence, on being summoned on the application
made by the accused the deponent of the affidavit (the complainant or any of
his witnesses) can only be subjected to cross-examination as to the facts
stated in the affidavit.
Subsequent,
to aforesaid judgment, the Hon'ble Supreme Court in Indian Bank Association Vs Union
Bank of India (2014) 5 SCC 590, while taking note of the aforesaid
judgment rendered in Mandvi Cooperative Bank (Supra) reiterated
that even if Legislature in their wisdom have deemed it not appropriate to
incorporate "accused" with the word "complainant" in
Section 145(1). It does not mean that the Magistrate could not allow the
accused to give his evidence on affidavit, unless there was just and reasonable
ground to refuse such permission. The Supreme Court also referred to judgment
rendered in Radhey Shyam Garg Vs Naresh Kumar Gupta (2009) 13 SCC
201, wherein it was 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.
Thus, according to Supreme Court, 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.
In Jagdeep Singh (Supra) the Himachal Pradesh High Court has held that
the defence plea raised by the accused is neither substantial nor specific,
hence, the application u/s 145(2) of negotiable instruments Act preferred by
the accused was rightly dismissed. However, a careful perusal of the second
part of Section 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. The
High Court thus held that in any case, if complainant and its witnesses are
cross-examined on the specific points, this would help the court below to
effectively adjudicate upon the controversy inter se parties and moreover, no
prejudice, whatsoever, would be caused to the complainant, in case complainant
and/or his witnesses are examined/cross-examined, rather, this would enable
court below to render proper adjudication of the controversy inter se parties.
The petition filed by the accused for seeking cross examination of complainant
witness was therefore allowed.
What therefore clearly emerged is that
under Section 145 of the Act, the complainant can give his evidence
by way of an affidavit and such affidavit shall be read in evidence in any inquiry,
trial or other proceedings in the Court, which makes it clear that a
complainant is not required to examine himself twice i.e. one after filing the
complaint and one after summoning of the accused. The affidavit and the exhibits
or documents filed earlier by the complainant along when the cognizance of the
offence may have been taken, should be good enough to be read in evidence at
both the stages i.e. pre-summoning stage and the post summoning stage and that
there is no requirement 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. 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. Therefore, though,
there is no necessity to recall and re-examine complainant, but Magistrate can
pass a specific order to recall the complainant, since, onus of rebuttal of the
complaint case u/s 139 of Negotiable Instruments Act shall be on the accused
and the accused, then, by virtue of cross examination of complainant’s witness
shall endeavour to discharge tat onus so as to shift the onus further on the complainant
and therefore, re-examination of the complainant witness whether upon filing of
application u/s 145(2) of Negotiable instruments Act and pursuant to suo moto
order passed by the Court shall be necessary for just disposal of the case. Such
an order is to be passed either on an application made by the accused under Section
145(2) of the Act or suo motu by the Court.
--------
Anil K Khaware
Founder &
Senior Associate
Societylawandjustice.com
No comments:
Post a Comment