Judgment 1. Complainant’s appeal against acquittal of the respondents for offences punishable under Section 138 of the N.I. Act. 2. Heard learned counsel Sri. S. Prahlad appearing for the appellant and Sri. Pramod N Kathavi, learned counsel for the respondents/accused. Perused the record in supplementation thereto. 3. The contextual facts needing reference are: The appellant/company incorporated under the Companies Act initiated prosecution against respondent No.1, a partnership concern for offences punishable under Section 138 of the N.I. Act on material allegation that it had appointed the accused/partnership firm as its distributor to deal with the agricultural products manufactured by it. The first respondent was represented by its partners respondents 2 and 3. During the course of said business transaction, the complainant accepted the order placed by the first respondent/accused and supplied its products which was documented in the Invoice. On delivery of the material indented by the accused, the transaction was complete. The accused/firm was liable to pay the value of the products so supplied and delivered. The accused acknowledging its liability to pay Rs.1,50,000/- issued the impugned cheque which on presentation to the Bank was dishonoured necessitating issuance of statutory notice raising a demand for paying the amount covered under the cheque and also Interest at 24% p.a. 4. The notice was duly served on the accused but they failed to comply with the demands made therein resulting in filing of the complaint before the jurisdictional Magistrate who took cognizance of the offences alleged and summoned the respondents/accused. 5. The accused denied the substance of allegation formulated against them for offences under Section 138 of the N.I. Act. 6. In the trial that ensued, the complainant represented itself through its attorney and Manager Mr. C.P. Suresh Kumar. Thus, Mr. C.P. Suresh Kumar filed sworn statement in the form of an affidavit in examination­in-chief before the Trial Court on 17.02.2006 and then appeared in person on 24.02.2006 for further examination­in-chief, and produced documents marked as Ex.P1 and P12. The case was then adjourned to 16.03.2006 for cross examination by the respondents/accused on which day, as cross examination was not done the case was posted to 23.03.2006. On that day and subsequent dates to which case was posted PW1 remained absent, consequent to which his cross examination could not be done by and on behalf of the accused. The position continued. On that day and subsequent dates to which case was posted PW1 remained absent, consequent to which his cross examination could not be done by and on behalf of the accused. The position continued. However, the Trial Court showed indulgence and adjourned the case for appearance of PW1 till 24.07.2006 on which date, noticing continuous absence of PW1 (Sri. C.K. Suresh Kumar) and as he had not tendered himself for cross-examination and no other witness was present, the complainant’s evidence was closed. 7. In the circumstances, the learned Trial Judge by Order dated 24.7.2006 dispensed with examination of the accused under Section 313 of Cr.P.C and posted the case for argument to 28.07.2006 area then to 31.07.2006, on which date, accepting the request of both sides, the case was adjourned to 05.08.2006 and on which date, an application under Section 311 of Cr.P.C. was filed by and on behalf of the complainant to recall PW1 which was allowed on cost of Rs.1,200/- and again, the case was posted for cross examination of PW1 (C.K. Suresh Kumar) to 19.08.2006. Again PW1 did not tender himself for Cross-examination. Instead of tendering him for the cross-examination the complainant filed an application for substitution of its representative Sri. C.P. Suresh Kumar by one Sri. B.K. Swamy, the present power of attorney holder to represent the complainant company. 8. Such request of the complainant was not opposed by the accused and thus, B.K. Swamy was permitted to represent the complainant company substituting him in place of C.D. Suresh. Thereafter, Sri. B.K. Swamy appeared only on 18.09.2006 on which date, he was examined himself as PW2 and during such evidence, he merely produced a deed of power of attorney executed in his favour by the company and was cross examined by the accused on 17.10.2006, only on that aspect as he did not depose anything more. Thereafter, the evidence of the complainant was closed and dispensing with the examination of the accused under Section 313 of Cr.P.C., the case was posted for argument and the impugned judgment has been passed on 30.12.2006. 9. Assailing it, complainant is in appeal under Section 378(4), Cr.P.C. 10. Thereafter, the evidence of the complainant was closed and dispensing with the examination of the accused under Section 313 of Cr.P.C., the case was posted for argument and the impugned judgment has been passed on 30.12.2006. 9. Assailing it, complainant is in appeal under Section 378(4), Cr.P.C. 10. Learned counsel for the appellant assails the impugned judgment on several grounds amongst which the following grounds are main contentions: I) The learned trial judge has seriously erred in ignoring the evidence tendered by PW1-C.K. Suresh Kumar through whom complainant had produced Exs.P1 to P12 including the impugned cheque, intimation from the bank and also statutory notice issued under Section 138 of the N.I. Act. II) PW2-B.K.Swamy was permitted by the court itself to represent the complainant substituting PW1-Sureshkumar. Therefore, B.K. Swamy’s evidence was continuation of the evidence led by PW1 and hence, the trial court could not have held complainant had led no evidence through PW2. III) Section 145 of the N.I. Act permits the complainant to produce evidence personally or through affidavit which the complainant had done. Therefore, the evidence of the complainant through affidavit filed by PW1 was sufficient material on record to establish the charge against the respondent under Section 138, N.I. Act, irrespective of fact he did not subject himself for cross examination. IV) The trial court failed to notice complainant was a juristic person; it could not have compelled it to be represented only by a particular individual. The Complainant had shown Suresh Kumar who was earlier appointed as attorney to represent it, had dissociated with the company was, substituted by PW2-B.K.Swamy. Thus for all intent and purposes, he was representing the complainant in substitution of PW1. Thus, PW2 could have been Cross-examined by the accused for the evidence led by PW1. V) The Negotiable Instruments Act, being a special enactment, it overrides the Evidence Act and hence, the provisions of the Evidence Act cannot be brought into play in the facts and circumstances of this case. VI) Alternatively, it was submitted if this court were to conclude the evidence of PW2 was not sufficient, then the case may be remanded to the trial court to give an opportunity to the complainant to recall PW2 and for further evidence and to mark the documents. 11. VI) Alternatively, it was submitted if this court were to conclude the evidence of PW2 was not sufficient, then the case may be remanded to the trial court to give an opportunity to the complainant to recall PW2 and for further evidence and to mark the documents. 11. Learned counsel for the appellant, in support of the grounds urged in the appeal, seeks citational support from the decision in the case of ASSOCIATED CEMENT COMPANY LIMITED .vs. KESHAVANAND ( AIR 1998 SC 596 ). He also refers to the opinion of the learned author, Mr. Sen Gupta in his book, NEGOTIABLE INSTRUMENTS ACT, 1881, on interpretation of Section 145(2). 12. In negation of all these grounds, Sri Pramod Katavi would submit that proceedings before the trial court (though commenced were not taken to its logical end by the complainant. Complainant had, on its own volition, withheld its witness from cross-examinations. PW1 was examined in-chief by filing affidavit and Exs.P1 to P12 were marked, but he failed to subject herself for cross-examination. Consequently he was ‘discharged’ and his depositions was not legal evidence and had to be ignored as rightly done by the trial court. 13. He submits so far as PW2 is concerned, though he was permitted to represent the complainant, he tendered only one-sentence evidence in his examination-in­-chief to produce the deed, i.e. general power of attorney, authorising him to represent the company. He spoke nothing relating to material allegations against the accused to support the charge under Section 138, N.I. Act. Therefore, there was nothing on record through PW2 consequent to which the complaint had to fail and rightly, the learned judge has rejected the complaint. Alternatively, he submits, even if it is held that the complainant had produced Exs.P1 to P12 in evidence and they were on record, accused has been deprived of a valid right in law to dislodge the incriminating aspects appearing in such evidence by testing it in cross-examination. Since the accused was deprived of such opportunity of cross-examining there was no legal evidence and the only logical conclusion is that the complainant had not established the charge against the accused in the manner known to law. 14. Since the accused was deprived of such opportunity of cross-examining there was no legal evidence and the only logical conclusion is that the complainant had not established the charge against the accused in the manner known to law. 14. Sri Pramod Katavi would further submit even if such evidence is taken on record, in view of the decision of the apex court in the case of KRISHNA JANARDHANA BHAT .v. DATTATREYA G.HEGDE (2008 AIR SCW 738), accused had only to show by preponderance of possibilities that the case as made out by the complainant did not establish the charge under Section 138, N.I. Act. In other words, the issue raised is, merely because there is an element of statutory presumption engrafted in Section 118(1) and Section 139, N.I. Act, it does not warrant conviction unless facts constituting ingredients of offence under Section 138 of N.I Act. 15. In support of his contentions, he relied on the following decisions: 1) THE ASSOCIATED CEMENT CO. LTD. vs. KESHVANAND ( AIR 1998 SC 596 ); 2) GOA PAST (P) LTD vs. CHICO URSULA D SOUZA ( AIR 2003 SC 2035 ) 3) SANNAREVANAPPA BHARAMAJAPPA KALAL vs. STATE OF KARNATAKA (ILR 1990 KAR 1205) 4) KRISHNA JANARDHAN BHAT vs. DATTATRAYA G.HEGDE ( AIR 2008 SC 1325 (1)) 16. As could be seen from the facts not in dispute, complainant is a company incorporated under the Companies Act, 1956. It is a juristic person and had to be represented in a civil suit or other proceedings through a person named in the Companies Act. Undoubtedly, it is the managing director because for all intent and purposes, he will be the de facto complainant. 17. The questions now needing consideration are: 1) Whether complainant who is juristic person could be permitted to change its representative substituting in the place of one who had earlier represented it at the time of initiation of the complaint to another person. 2) Whether the evidence tendered by the complainant on affidavit as permissible under Section 145 of NI Act in examination in chief is legal evidence, if he fails to tender himself for cross-examination? 18. 2) Whether the evidence tendered by the complainant on affidavit as permissible under Section 145 of NI Act in examination in chief is legal evidence, if he fails to tender himself for cross-examination? 18. As regards the first issue, it is now well settled that when the complainant is a juristic person, it will be a de jure complainant, and as it is incapable of physical presence in court, it has to be represented by a living person who will be de facto complainant. It will be the right of the complainant to choose its representative. If the incorporeal body was represented by a particular individual at the time of presenting the complaint, there is no compulsion that the entire proceedings should be concluded only by him. He could be substituted in the discretions of the company by another person subject to contingencies in the administration of the company. This issue was considered by the Apex court in the case of ASSOCIATED CEMENT COMPANY (supra) and more elaborately in the case of NATIONAL SMALL INDUSTRIES CORPORATION LTD. v. STATE (NCT OF DELHI) reported in AIR 2009 SC 1284 ) wherein the apex court has observed thus: ‘In the circumstances; a harmonious and purposive interpretation of Section 142 of the N.I. Act and Section 200, Cr.P.C. is necessary. Section 142 only requires that the complaint should be ire the name of the payee. Where the complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code, but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result the company becomes a de jure complainant and its employee or other representative, representing it in criminal proceedings, becomes de facto complainant. Thus, in every complaint, where the complainant is an incorporeal body, there is a complainant-de jure, and a complainant-de facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the: complainant and his witnesses. Thus, in every complaint, where the complainant is an incorporeal body, there is a complainant-de jure, and a complainant-de facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the: complainant and his witnesses. Where the complainant is an incorporeal by represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he as in discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to Section 200 of the Code will be available.’ The affirmative view of the apex court is, ‘no complaint can be dismissed only on the ground that the person who gave the statement for taking cognizance had not subsequently tendered evidence during trial.’ 19. Therefore, I accept the contention of the learned counsel for the appellant/complainant that due to changed circumstances, in view of PW1 walking out of the company, complainant was within its right in seeking substitution to be represented by PW2-B.K.Swamy. 20. As regards question nos.(2) and (3), it has to be tested with reference to Section 145 of the NI Act and the provisions contained in the Evidence Act. As we see from the impugned judgment, the trial court has noticed PW1-Sureshkumar having filed affidavit in Examination-in­-chief during trial did enter the witness box and through him Exs.P1 to P12 were marked, but he failed to tender himself for cross-examination, despite several opportunities compelling the trial court to close evidence, Therefore, it amounts to ‘discharging’ PW1. Besides, it has to be noticed complainant had filed an application under Section 311, Cr.P.C. after the evidence of PW1 was closed and though that application was being allowed, again PW1 failed to appear for cross-examination. Consequently, he was legally discharged. The consequence flowing from such order is, the evidence tendered by him (PW1) in examination in chief through sworn statement in the affidavit is of no avail. 21. Appellant’s contention is, in view of Section 145, N.I. Act, the provisions of the Evidence Act have no application in a trial for the offence under Section 138 of the N.I. Act. 22. 21. Appellant’s contention is, in view of Section 145, N.I. Act, the provisions of the Evidence Act have no application in a trial for the offence under Section 138 of the N.I. Act. 22. Thus the moot question would be: Whether the provisions of Section 145 which permits complainant to give evidence on affidavit, is ‘legal evidence?’ The answer obviously has to be in the negative as could be seen from the language of Section 145 itself. The language of Section 145 is clear. It begins with the non-abstante clause referring only to the provisions of the Code of Criminal Procedure and not the Evidence Act. Sub-section (1) envisages ‘notwithstanding anything contained in the Code of Criminal Procedure (2/1974), evidence of the complainant may be given by him on affidavit and may, subject to all exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code.’ It no doubt permits evidence of the complainant may be given by him on affidavit, it is subject to all exceptions and is not without any riders. 23. Sub-section (2) of Section 145 is relevant which mandates the court may, if it thinks fit, and ‘shall’ on application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.’ It leaves no scope for doubt that mere filing of affidavit by the complainant is no evidence in law if such person (witness) fails to depose to the facts contained in the affidavit when called upon to do so. The court may, if it thinks fit, but ‘shall’ on the application (which could be written application or even oral as the section does not insist on written application) of the prosecution or the accused, summon and ‘examine any person giving evidence on affidavit as to the facts contained therein. Therefore, discretion k given to the court if it thinks fit to summon a person who has filed affidavit to examine him as to the facts contained therein. This discretion of the court is capped with a direction in sub-section (2) itself by use of the word ‘shall’ making it mandatory for the court to summon and examine any person giving evidence on affidavit on the application of the prosecution or the accused. This discretion of the court is capped with a direction in sub-section (2) itself by use of the word ‘shall’ making it mandatory for the court to summon and examine any person giving evidence on affidavit on the application of the prosecution or the accused. That means, when the complainant has given evidence on affidavit, if the accused applies to the court, then the court has no discretion but to summon the deponent in the affidavit to appear for examination as to the facts contained in the affidavit. Despite the court’s direction, if ‘the person giving evidence in examination-in-chief on affidavit fails to appear and tender himself to be examined, then the deposition in the affidavit will not translate into legal evidence. Tills requirement is in line with the provisions of the Evidence Act, particularly in Section 138 to which we shall refer in the following paragraphs. 24. Besides the legislative intent is very clear from the language of Section 145, N.I. Act. This provision was inserted in view of Section 143 of the Act which prescribes the procedure to be followed in the conduct of trial for the offence under Section 138 of the N.I. Act as a summons case as prescribed in the Code of Criminal Procedure. As by virtue of Section 143 of the N.I. Act the provisions prescribing the procedure for trial of summons case was made applicable in trial of cases under Section 138, N.I. Act, Section 145 was incorporated permitting evidence on affidavit, but by sub-section (2) of Section 145, a legal requirement is the court, if it thinks fit, may summon and examine the person who has given evidence on affidavit as to the facts contained therein. Even if the court does not think fit to summon such person, right is given to the accused to apply to the court which may be written application or oral request to examine such person who has given evidence by affidavit as to the facts contained therein. Undoubtedly it refers to the right of cross-examination. As in Section 145, N.I. Act there is no other indication that the Evidence Act has been made inapplicable to proceedings for trial of offences under Section 138 of the Act, the Evidence Act would be applicable. 25. Undoubtedly it refers to the right of cross-examination. As in Section 145, N.I. Act there is no other indication that the Evidence Act has been made inapplicable to proceedings for trial of offences under Section 138 of the Act, the Evidence Act would be applicable. 25. Conspectus of the provisions of Sections 135 to 139 in Chapter X of the Evidence Act deals with the situation like in the instance case. Section 135 prescribes: “The order in which witnesses are produced and examined. It shall be regulated by law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court.” Section 136 deals with admissibility of evidence which confers on the judge special power. It reads thus. S. 136. Judge to decide as to admissibility of evidence: ‘When either party proposes to give evidence of any fact, the judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.’ It clarifies that every statement by a witness even given on oath before the court is not evidence in law unless the court admits such evidence. 26. What is the meaning of ‘examination-in-chief and cross-examination of a witness is spelled out in Section 137. It reads ‘the examination of a witness by the party who calls hire shall be called his examination-in-­chief. The examination of a witness, by the adverse party shall be called his cross-examination.’ 27. Section 138 postulates ‘a witness ‘shall’ be first examined-in-chief, then (if the adverse party so desires) cress-examined, then (if the party calling him so desires) re-examined.’ Thus, a witness after being first ermined in Chief, if the adverse party desires, then, he ‘shall’ be cross examined. 28. The contention of the complainant is what PW1 spoke in examination-in-chief being on record that Dart of his deposition in evidence is rejected. Such deposition only in examination-in-chief being not legal Evidence had to be eschewed. The second preposition canvassed by him is that deposition of PW-1 C.K. Sureshkumar through affidavit should be taken as evidence of PW-2 is a strange preposition worthy of only rejection. 29. Such deposition only in examination-in-chief being not legal Evidence had to be eschewed. The second preposition canvassed by him is that deposition of PW-1 C.K. Sureshkumar through affidavit should be taken as evidence of PW-2 is a strange preposition worthy of only rejection. 29. What is ‘‘evidence’ is spelled out in the Evidence Act as could be seen under Section 3 which reads: “Evidence” means and includes: (1) all statements which the court permits or requires to be mace before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence.’ Therefore, the evidence we expect from the complainant in a case of this nature is evidence relating to matters of fact under enquiry and not a solitary statement of PW2 that he is the attorney appointed by the company. That statement was not brought into controversy by the accused and in fact, he had consented for substituting him in place of PW1. 30. In fact, this issue was incidentally considered by this court while referring to Section 319, Cr.P.C. in the case of SANNAREVANAPPA BHARAMAJAPPA KALAL VS. STATE OF KARNATAKA (ILR 1990 KAR 3205) where this court observed thus: ‘Complete evidence calls for cross-examination not examination-in-chief alone. If witness does not submit to cross-examination after examination-in-chief Court precluded from acting on such incomplete evidence.’ The statement of a witness to be called ‘evidence’ must be capable of being tested in cross-examination, otherwise it will certainly not be legal evidence. The complainant has to Name itself for the predicament in which it has landed by not tendering PW1 for cross-examination. From the appellant there is no statement why PW1 had refused to tender himself for cross-examination. Merely because he had left the company (complaint) was no justification to keep him away from cross-examination. Taking the extreme case, if he had developed adverse animus to the complainant, even then his presence could have been secured by issuing coercive process provided under the Cr.P.C. 31. Alternatively, complainant had a very easy and convenient course to subject PW2 to fresh examination in chief and through him to mark the documents which were on record. Taking the extreme case, if he had developed adverse animus to the complainant, even then his presence could have been secured by issuing coercive process provided under the Cr.P.C. 31. Alternatively, complainant had a very easy and convenient course to subject PW2 to fresh examination in chief and through him to mark the documents which were on record. The contention of the learned counsel for the appellant that it is legally- impermissible is hardly sustainable for the simple reason, what PW1 spoke was to mark documents which were not his personal effects, but of the complainant company-a juristic person in which he had no personal claim. The documents were already on record and in the event of change of person representing the complainant, the successor could have referred to the very same documents in his evidence as there is no legal impediment or restriction to receive in evidence documents which are on record and admissible. 32. That apart, there is no bar in the Evidence Act for any witness to refer to the documents filed for the purpose of tendering evidence. This could be found in the provisions of Sections 160 and 161 of the Evidence Act which are extracted hereunder: “160. Testimony to facts stated in document mentioned in section 159 - a witness ‘nay also testify to facts mentioned in any such document as is mentioned in Section 159; although he has no specific recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. 161. Right of adverse party as to writing used to refresh memory - Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, Cross-examine the witness thereupon.” Therefore, the contention of the learned counsel that PW2 could not have been examined with reference to the documents on record is discounted. 33. Now we have to see what is the resultant effect. As the statement of PW1 in examination-in-chief was not tested in cross-examination due to his own default, it remained merely a statement and had not transformed into legally acceptable evidence. Besides as PW2 who entered into the witness box spoke nothing of the facts in issue, it was no evidence. Now we have to see what is the resultant effect. As the statement of PW1 in examination-in-chief was not tested in cross-examination due to his own default, it remained merely a statement and had not transformed into legally acceptable evidence. Besides as PW2 who entered into the witness box spoke nothing of the facts in issue, it was no evidence. This could be found in Section 136 of the Evidence Act which envisages: “136. Judge to decide as to admissibility of evidence - when either party proposes to give evidence of any fact, the judge may ask the party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence it he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the court is satisfied with such undertaking. If the relevancy of any alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.” 34. That means, examination of a person before court on oath or otherwise as provided by the Code will not make his statement as evidence admissible in the proceeding unless court admits it. 35. In this background we have to see whether the complainant had succeeded in establishing the charge against the accused under Section 138, N.I. Act. There could be no two opinions that though the proceedings are quasi-criminal, but the ultimate effect is penal in nature. Therefore, when a person is liable to be sentenced for imprisonment upto two years, complainant cannot be given any concession except to prove the charge beyond reasonable doubt, To prove the charge beyond reasonable doubt, evidence must be the clincher, clear, establishing; all the ingredients constituting the offence under Section 138. Therefore, when a person is liable to be sentenced for imprisonment upto two years, complainant cannot be given any concession except to prove the charge beyond reasonable doubt, To prove the charge beyond reasonable doubt, evidence must be the clincher, clear, establishing; all the ingredients constituting the offence under Section 138. When the complainant’s evidence did not establish the transaction, nor did it establish that the cheque was issued in respect of an existing debt or legal liability, mere issuance of it and its dishonour does not constitute the offence. 36. In this appeal, a request is made to remand the case to the trial court for fresh evidence. It is not acceptable because in the fact situation, Section 167 of the Evidence Act would come into play which mandates: “167. No new trial for improper admission or rejection of evidence - The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision:” 37. I am satisfied in view of this provision, even if there be any unjust admission or rejection of evidence, re-trial is impermissible. The appeal fails and it is accordingly dismissed, confirming the impugned judgment.