Madhya Pradesh High Court
Dayaram Pmnani vs Vijay Anand on 2 December, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:31182
1 MCRC-3125-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 2 nd OF DECEMBER, 2025
MISC. CRIMINAL CASE No. 3125 of 2024
DAYARAM PMNANI
Versus
VIJAY ANAND
Appearance:
Shri Vivek Kumar Mishra - Advocate for the petitioner.
Shri Harshit Sharma - Advocate for the petitioner/amicus curiae.
Shri Rajeev Shrivastava - Advocate for the respondent.
ORDER
The present petition has been filed under Section 482 of Cr.P.C./528 of BNSS against the order dated 13.10.2023, whereby the District & Sessions Judge, Gwalior in Cr.R. No.276/2023, while rejecting the revision petition of the petitioner, has confirmed the order dated 03.05.2023 passed by Judicial Magistrate First Class, Gwalior in Case (SCNIA) No.1113/2018 and an application of the petitioner under Section 461 of Cr.P.C. has been rejected.
The case in brief is that the complainant has filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the respondent/accused, which is registered as criminal complaint case No.1113/2018 and is presently pending before the Court of the Judicial Magistrate First Class. The complaint relates to Cheque No.018707, which Signature Not Verified Signed by: NEETU SHASHANK Signing time: 12/4/2025 3:15:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:31182 2 MCRC-3125-2024 the complainant alleges was dishonoured and requires scrutiny by the trial court for proper adjudication. During the proceedings, the petitioner filed an application under Section 461 of Cr.P.C., praying that the entire case be declared void on the ground that the complaint was not accompanied by the mandatory affidavit. It was argued that in the absence of a proper affidavit, the complaint was defective and contrary to the prescribed legal procedure. However, the trial court rejected the application vide order dated 03.05.2023 and also took the reply on record. Aggrieved by this order, the petitioner preferred a revision petition before the revisional court, which too was dismissed vide order dated 13.10.2023. Feeling dissatisfied with both impugned orders passed by the courts below, the petitioner has now filed the present petition.
Learned counsel for the petitioner, relying upon the judgment of Baldeve Thakur vs. Anand Agarwal (order dated 20.02.2020 passed in M.Cr.C. No. 5572/2020), submits that the impugned orders dated 13.10.2023 and 03.05.2023 are contrary to the settled principles of law and the material available on record. It is argued that both orders suffer from non- consideration of relevant evidence and are inconsistent with the law laid down by the Hon'ble Supreme Court and this Court. It is further contended that the impugned orders are illegal and amount to an abuse of the procedure of law, as the courts below ignored the basic facts apparent from the record. Counsel submits that the Negotiable Instruments Act is a special statute, and as per Section 145, evidence in cases under Section 138 N.I. Act can be taken on affidavit. He has read-over the provisions of Sec. 145 of Negotiable Signature Not Verified Signed by: NEETU SHASHANK Signing time: 12/4/2025 3:15:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:31182 3 MCRC-3125-2024 Instrument Act which reads 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 inquiry, trial or other proceedings 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.
It is a settled legal position that special law prevails over general law, as held by the Hon'ble Supreme Court in Indian Bank Association & Ors. vs. Naresh Kumar (2014) 5 SCC 590. In light of the above, filing of a complaint along with affidavit and documents is permissible, and cognizance can be taken on that basis. After appearance, the accused has the right to cross-examine the complainant on those affidavits and documents. Therefore, the application filed by the petitioner under Section 461 Cr.P.C. was legally untenable and has been dismissed without proper consideration of the material on record. It is further submitted that the trial court failed to assign reasons for not considering the judgments cited by the accused. Conversely, the judgments cited by the trial court in the impugned order are factually distinguishable and not applicable to the present case. He prays that the present petition be allowed and the complaint of the respondent be dismissed.
Learned counsel for the respondents opposes the petition and submits that the orders passed by the trial court and the revisional court are legal, proper, and based on correct appreciation of facts and law. It is argued that no procedural irregularity or illegality occurred in rejecting the petitioner's application under Section 461 Cr.P.C. or in dismissing the revision. It is further submitted that the petitioner has failed to show any error apparent on Signature Not Verified Signed by: NEETU SHASHANK Signing time: 12/4/2025 3:15:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:31182 4 MCRC-3125-2024 record warranting interference under Section 482 Cr.P.C./528 BNSS. Accordingly, learned counsel for the respondents prays that the petition be dismissed.
Learned counsel for the amicus curiae has also supported the aforesaid findings.
Heard the learned counsel for the parties and perused the record. The Hon'ble Supreme Court in the case of Indian Bank Association (supra) has held as under:-
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 could have been committed by him for specific reasons and defences.
Further the Hon'ble Supreme Court in the case of Radhey Shyam Garg (supra) has held as under:
19. 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-Signature Not Verified Signed by: NEETU SHASHANK Signing time: 12/4/2025 3:15:44 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:31182 5 MCRC-3125-2024 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 subsection (2) of Section 145 of the Act', in our opinion, would mean for the purpose of cross-examination. The provision seeks to attend a salutory purpose. The statement of Objects and Reasons for enacting the said provision, inter alias, reads 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 speeding up disposal of cases;"
20. The object of enactment of the said provision is for the purpose of expedition of the trial. A criminal trial even otherwise is required to be expeditiously held. We therefore do not find any justification for arriving at a finding that a witness can again be summoned for his examination in chief in the court despite affirming affidavit in that behalf.
It is further held by Hon'ble Supreme court in the case of Mandvi Cooperative Bank Limited v. Nimesh B. Thakore reported in (2010) 3 Supreme Court Cases 83 as under:-
34. 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 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.
In view of the settled legal principles laid down by the Hon'ble Supreme Court in Indian Bank Association , Radhey Shyam Garg , and Mandvi Cooperative Bank Ltd. (supra), it is evident that evidence by way of affidavit under Section 145 of the Negotiable Instruments Act is legally permissible and sufficient for taking cognizance as well as for further proceedings in a complaint under Section 138 of the Act, thus, the affidavit Signature Not Verified Signed by: NEETU SHASHANK Signing time: 12/4/2025 3:15:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:31182 6 MCRC-3125-2024 filed alongwith the complaint & relied upon by the Court while taking cognizance could only be reckoned for the purpose of evidence. The Courts below failed to appreciate this settled position of law without considering the material on record and the binding precedents cited. and erroneously rejected the petitioner's application under Section 461 Cr.P.C.
Accordingly, the impugned order dated 13.10.2023 passed by the District & Sessions Judge, Gwalior in Cr.R. No. 276/2023, as well as the order dated 03.05.2023 passed by the Judicial Magistrate First Class, Gwalior in Case (SCNIA) No. 1113/2018, are hereby set aside.
The petition stands allowed and disposed of in the light of the aforesaid observations.
(MILIND RAMESH PHADKE) JUDGE neetu Signature Not Verified Signed by: NEETU SHASHANK Signing time: 12/4/2025 3:15:44 PM