Himachal Pradesh High Court
Lalit Jaswal vs Sarbjeet Singh on 21 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.119 of 2019 Date of Decision: 21.11.2022 .
_______________________________________________________ Lalit Jaswal .......Petitioner Versus Sarbjeet Singh ... Respondent _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioner:
Mr. Dheeraj K. Vashisht, Advocate.
For the Respondent: Mr. Sunny Modgil, Advocate.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with the order dated 7.01.2019 passed by learned Additional Chief Judicial Magistrate, Court No.1, Amb, District Una, H.P., whereby an application under Section 145(2) of the Negotiable Instruments Act, seeking therein permission to cross-examine the complainant and his witnesses, preferred on behalf of the petitioner-accused, came to be dismissed, petitioner-accused has approached this Court in the instant proceedings filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, praying therein to set-aside the aforesaid order and grant one opportunity to cross-examine the complainant 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 24/11/2022 20:31:15 :::CIS 2
and his other witnesses adduced in support of the averments contained in the complaint.
2. Precisely, the facts as emerge from the record are that .
the respondent (hereinafter referred to as the 'complainant') instituted a complaint under Section 138 of the Negotiable Instruments Act (for short Act) in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Amb, District Una, H.P., alleging therein that petitioner-accused (hereinafter referred to as 'accused') issued cheque amounting to Rs.90,000/- in favour of the complainant towards discharge of his lawful liability. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused. Since, despite having received legal notice, accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to initiate proceedings under Section 138 of the Act, in the competent court of law in the year 2014, but accused could be only served in the year 2016, whereafter matter repeatedly came to be adjourned on the request of accused for exploring the possibility, if any, of compromise interse him and the complainant. Subsequently, on 7.01.2019, accused preferred an application under Section 145(2) of the Act, seeking therein permission to cross-examine the complainant and his witnesses, but trial Court having taken note of the fact that repeatedly matter came to be delayed by the accused, dismissed the application and posted the matter for DWs 23.02.2019. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings.
::: Downloaded on - 24/11/2022 20:31:15 :::CIS 33. I have heard learned counsel representing the parties and perused the material available on record.
4. Though, material available on record clearly reveals that .
complaint at hand was filed somewhere in the year 2014, but on one pretext or other, accused had been avoiding service and he could only be served in the year 2016. Even thereafter, matter repeatedly came to be adjourned, enabling the accused to compromise the matter with the complainant. However, after closure of the evidence of the complainant, accused preferred an application under Section 145(2) of the Act, seeking therein permission to cross-examine the complainant and his witnesses.
5. At this stage, it would be profitable to reproduce Section 145(2) of the Act herein:-
"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."
6. Careful perusal of Section 145(2) of the Act, clearly reveals that Court on receipt of application of prosecution or the accused has no option but to summon and examine any person giving evidence on affidavit as to the facts contained therein. Once application under Section 145(2) of the Act is filed on behalf of accused, praying therein to cross-examine the complainant or his witnesses, Court below have no option, but to allow the ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 4 same. However, in the instant case, Court below passed impugned order dated 7.1.2019, which is totally non-speaking, thereby dismissing the application primarily on the ground that accused repeatedly procured time .
to compromise the matter, but subsequently failed to settle the matter, which definitely cannot be a ground to deny the prayer made in the application under Section 145(2) of the Act. Hon'ble Apex Court as well as this Court while interpreting Section 145(2) of the Act has repeatedly held that expression "shall" use in the aforesaid provisions means that prayer, if any, made through application is required to be allowed.
7. Learned counsel for the accused, while making this Court peruse provisions of S.145(2) of the Act, as well as placing reliance upon judgment rendered by this Court in judgment rendered by this Court in Cr.MMO No. 216 of 2019 titled Anu Sharma vs. Punjab National Bank, decided on 7.8.2019, strenuously argued that the impugned order passed by learned Court below is not sustainable being contrary to the provisions contained under the Act as well as law laid down by this Hon'ble Court.
Learned counsel for the accused 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.
8. 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/re-examination/cross-examination of the complainant?". This issue has been elaborately discussed by this Court in ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 5 Anu Sharma (supra), relevant paragraphs of which are reproduced hereunder:
"5. At this stage, it would be apt to reproduce provisions of .
S.145 of the Act ibid 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."
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, 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, S.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 ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 6 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.
8. S.145, with its non obstante clause, as taken note herein .
above, though provides for evidence of the complainant by way of affidavit but, certainly, affidavit of the complainant can be 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 the affidavit (complainant or any of its witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit.
11. At this stage, it would be apt to reproduce following paragraphs of judgment rendered by Hon'ble Apex Court in Mandvi Cooperative Bank 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 ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 7 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 r 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 defines "examination-in- chief", "cross-
examination" and "re-examination" and on that basis sought to argue that the word "examine" occurring in section 145(2) must be construed to mean all the three kinds of examination of a witness. This, according to him, coupled with the use of the word "shall" with reference to the application made by the accused made it quite clear that a person giving his evidence on affidavit, on being summoned under section 145(2) at the instance of the accused must begin his deposition with examination-in- chief, before he may be cross-examined by the accused. In this regard he submitted that section 145 did not override the Evidence Act or the Negotiable Instruments Act or any other law except the Code of Criminal Procedure. He further submitted that the plain language of section 145(2) was clear and unambiguous and was ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 8 capable of only one meaning and, therefore, the provision 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 r 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 nothing in section 145(2) to suggest that. We may also make it clear that section 137 of the Evidence Act does not define "examine" to mean and include the three kinds of examination of a witness; it simply defines "examination-in- chief", "cross- examination" and "re-examination". 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 ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 9 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-in-chief. Hence, on r 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."
12. Subsequent to aforesaid judgment, question with regard to the competence of a Magistrate to summon a person, who has tendered his evidence by way of affidavit, while exercising power under S.145 CrPC came up for consideration before Hon'ble Apex Court in Indian Bank Assn. v. Union Bank of India (2014) 5 SCC 590, wherein Hon'ble Apex Court, 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 S.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. 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 ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 10 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. Reliance is placed upon following paragraphs of Indian Bank Assn. (supra):
"13. Section 145 of the Act deals with the evidence on affidavit and reads as follows :
"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."
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.
::: Downloaded on - 24/11/2022 20:31:15 :::CIS 1115. This Court while examining the scope of Section 145 in Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, held as follows :-
"If an affidavit in terms of the provisions 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."
16. Considerable time is usually spent for recording the statement of the complainant. 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-in- chief. Section 145(1) gives complete freedom to the r 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 Section 262 to 265 of the Code of Criminal Procedure, 1973. The relevant provisions being Sections 262 to 264 are extracted hereinbelow for easy reference :
"262. Procedure for summary trials.
(1) In trials under this Chapter, the procedure specified in this Code for the trial 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.
::: Downloaded on - 24/11/2022 20:31:15 :::CIS 12263. 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 terminated.
264. Judgment in cases tried summarily. - In every case tried summarily in which the accused does not plead guilty, r the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding."
18. We have indicated 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. 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 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 ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 13 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 complainant. 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.
15. In the case at hand, application under S.145(2) came to be filed on behalf of the accused, seeking 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 by learned Court below, while passing impugned order that the defence plea raised by the accused is neither substantial nor specific. Accused has specifically taken a plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant, as such, accused is well within his right to cross-examine the complainant and its witnesses, specifically on the aforesaid points. Moreover, ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 14 as has been observed herein above, a careful perusal of 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.
17. Leaving everything aside, no prejudice, whatsoever, would be caused to the complainant, in case, complainant and its witnesses are cross-examined on the specific points, taken note herein above, rather, this would help the court below to effectively adjudicate upon the controversy inter se parties."
9. 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/cross-examined, rather, this would enable court below to render proper adjudication of the controversy inter se parties.
10. Though, learned Court below has placed reliance upon some judgment passed by Hon'ble Apex Court in All India Bankers Association vs. M/s Meters and Instruments Limited, but same is not available anywhere. Nor citation of aforesaid judgment has been given nor date of the decision. Moreover, aforesaid judgment is not applicable in the present facts ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 15 of the case as has been discussed in the impugned order and as such, same is not sustainable in the eye of law.
11. Consequently, in view of the detailed discussion made .
hereinabove, impugned order dated 7.01.2019 passed by learned Additional Chief Judicial Magistrate, Court No.1, Amb, District Una, H.P., is quashed and set-aside with the direction to the Court below to allow/permit the petitioner-accused to cross-examine the complainant and his witnesses on the date to be fixed by it, enabling both the parties to remain present before the Court below. However, aforesaid order passed by this Court shall be subject to payment of cost amounting to Rs.7500/- payable to the complainant.
12. Learned counsel representing the parties undertake to cause presence of their respective clients before the Court below on 21.12.2022, enabling Court below to fix the date for cross-examination of the complainant as well as his witnesses. However, it is clarified that in case costs, as quantified hereinabove, is not paid to the complainant on or before the next date of hearing, order dated 7.1.2019 passed by learned court below shall automatically revive and no more opportunity would be given to the petitioner/accused to cross-examine the complainant as well as his witnesses.
13. Since complaint having been filed by the complainant is pending adjudication for more than eight years, this Court hopes and trust ::: Downloaded on - 24/11/2022 20:31:15 :::CIS 16 that court below would make all out efforts to decide the complaint within a period of three months from today.
14. All pending applications are disposed of. Interim directions, if any, .
are vacated.
(Sandeep Sharma),
Judge
21st November, 2022
(shankar)
r to
::: Downloaded on - 24/11/2022 20:31:15 :::CIS