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2017 DIGILAW 714 (KER)

Tomy T. J. v. State of Kerala

2017-04-10

ALEXANDER THOMAS

body2017
JUDGMENT : Alexander Thomas, J. The original petition has been filed by the petitioner by virtue of the enabling powers conferred under Article 227 of the Constitution of India, with prayer to set aside the impugned Ext. P-2 order passed by the Trial Court. The petitioner herein is the complainant in CC No. 864 of 2015 on the files of the Judicial First Class Magistrate Court, Njarakkal, alleging offence punishable under section 138 of the Negotiable Instruments Act, 1881, against the 2nd respondent herein (accused). It is stated that the complainant was examined as P.W.-1 and had got marked as Exts. P-1 to P-4 documents therein. Thereafter, the accused was subjected to section 313, Cr. P.C. questioning process. Later, when the opportunity for adducing defence evidence had come up, the 2nd respondent (accused) had filed Ext. P-1 proof affidavit in lieu of chief examination of the accused as D.W.-1 and this was objected to by the counsel for the petitioner. However, the learned Magistrate has accepted Ext. P-1 proof affidavit in the file of the case and has posted the case for cross-examination of D.W.-1 (accused) by the complainant. The learned Magistrate has overruled the objection of the petitioner's Counsel and has passed Ext. P-2 to that extent. The petitioner seeks to challenge the permission granted by the learned Magistrate for accepting the proof affidavit of D.W.-1 (accused) in lieu of the chief-examination D.W.-1 (accused), in view of the provisions contained in section 145 of the Negotiable Instruments Act. 2. It is contended by the petitioner that the provisions contained in section 145 of the Negotiable Instruments Act do not enable the accused to give evidence on affidavit and that section 145(1) only enables the complainant to adduce evidence on affidavit and the word "accused", is conspicuously and intentionally omitted from the scope and ambit of section 145(1). Therefore, it is contended that sections 145(2) of the Negotiable Instruments Act only enables either the prosecution or the accused to file application for the purpose of examining any person who comes within the ambit of section 145(1), who is giving evidence on affidavit. Therefore, it is contended that sections 145(2) of the Negotiable Instruments Act only enables either the prosecution or the accused to file application for the purpose of examining any person who comes within the ambit of section 145(1), who is giving evidence on affidavit. That the intention of the Legislature, was to enable the accused also to give the evidence on affidavit, then there would have been clear wordings to that effect in section 145, enabling the accused also the same benefit and in the absence of such explicit terms, as has been extended to the complainant, such a right cannot be exercised by the accused to tender affidavit in lieu of chief-examination of witnesses of the defence/accused. The petitioner also places reliance on the judgment of Madras High Court in Thanaiya v. Balasamy Nadar, 2005 (2) KLT 643 : 2005 KHC 699. 3. Heard Sri T.N. Suresh, learned Counsel appearing for the petitioner (complainant), Sri Denizen Komath, learned Counsel appearing for the 2nd respondent (accused) and Sri Jestin Mathew learned Public Prosecutor, appearing for the 1st respondent-State. 4. The matter in issue in this regard is longer res integra and is fully covered in favour of the petitioner by virtue of the ratio decidendi laid down by the Apex Court in the judgment in Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83 . 5. Section 145 of the Negotiable Instruments Act provides 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. 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 Apex Court, in the decision in Mandvi Go-operative Bank Ltd.'s case (supra), has held that the claim of the accused that on being summoned under section 145(2), the complainant or any of his witnesses whose evidence is given on an affidavit must be made to depose in examination in chief all over again, plainly appears to be a demand for meaningless duplication, which is apparently aimed at delaying the trial and categorically held therein that there is nothing in the plain language of section 145(2) to suggest that (see paras 29 and 33 of SCC report). Further, it was also held therein that section 145(2) uses both the word "may" (with reference to the Court) and "shall" (with reference to the prosecution or the accused) and thus, it is clear 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 and the affidavit of the person so summoned that is already on record is obviously in the nature of examination-in-chief and 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, (refer paras 30 and 34 of SCC report). Further, it was also held in para 35 of the said judgment that insofar as the prosecution is concerned, the occasion to summon any of its witnesses who has given his evidence on record, may arise in two ways. Further, it was also held in para 35 of the said judgment that insofar as the prosecution is concerned, the occasion to summon any of its witnesses who has given his evidence on record, may arise in two ways. The prosecution may summon a person, who has given his evidence on affidavit and has been cross-examined for "re-examination" and the prosecution may also have to summon a witness whose evidence is given on affidavit, in case, objection is raised by the defence regarding the validity and/or sufficiency of the proof of some document(s) submitted alongwith the affidavit and in such an event, the witness may be summoned to appear before the Court to cure the defect and to have the document(s) properly proved by following the correct legal mode. 6. More particularly, it was held by the Apex Court in Paras 46, 47 etc. of the said judgment that the right of the complainant to give his evidence on affidavit, as per section 145(1) of the Negotiable Instruments Act is not available to the accused and the Legislature has clearly used the expression "evidence of the complainant may be given by him on affidavit" as per section 145(1). The Court again added the word "accused" in it and that there is a basic difference between the nature of the evidence of the complainant and that of the accused in a case of dishonoured cheque and therefore, by drawing the same analogy' it cannot be held that the Magistrate can allow the accused also to give evidence on affidavit etc. In the said judgment, it was held in Paras 29 and 31 of the impugned judgment of the Bombay High Court as follows : "45. In Para 29 of the judgment, the High Court observed as follows : "It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. In Para 29 of the judgment, the High Court observed as follows : "It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate the word 'accused' with the word 'complainant' in sub-section (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20 (3) of the constitution of India " Then in Para 31 of the judgment it observed : "Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code." 7. Dealing with the abovesaid aspects dealt with paras 29 and 31 of the Bombay High Court's judgment, their Lordships of the Supreme Court held in paras 46 to 48 of Mandvi Co-operative Bank Ltd.'s case (supra) as follows : "46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking over the legislative functions. On a bare reading of section 143 (sic section 145) it is clear that the Legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused alongwith the complainant in sub-section (1) of section 145 was merely an omission by the Legislature that it could fill up without difficulty. Even though the Legislature in their wisdom did not deem it proper to incorporate the word "accused" with the word "complainant" in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. 47. Even though the Legislature in their wisdom did not deem it proper to incorporate the word "accused" with the word "complainant" in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. 47. There are two errors apparent in the reasoning of the High Court. First, if the Legislature in their wisdom did not think "it proper to incorporate a word 'accused' with the word 'complainant' in section 145(1)...." it was not open to High Court to fill up the self-perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. 48. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In a case the defence does lead any evidence, the nature of its evidence may not be necessarily be documentary; In all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complaint's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well." 8. In the light of the above said reasoning, given in Paras 46 to 48 of the said Apex Court judgment, it was held in Para 52 of the said judgment by the Apex Court that the Bombay High Court was in error in taking the view, that on a request made by the accused, the Magistrate may allow him to tender his evidence on affidavit and consequently the direction issued by the Bombay High Court, in that regard was set aside. Thus, the Apex Court has clearly and categorically held in Mandvi Cooperative Bank Ltd.'s case (supra) that the right available to a complainant to adduce evidence by affidavit in lieu of chief examination, is not available to an accused in view of the specific provisions engrafted in section 145(1) of the Negotiable Instruments Act. A similar view was earlier taken by the Madras High Court in judgment in Thanaiya v. Bafasamy Nadar, 2005 (32) AIC 224 (Ker) : 2005 (2) KLT 643 : 2005 KHC 699. 9. In the result, this Court is constrained to hold that the impugned order rendered by the Trial Court in Ext. P-2 order is clearly illegal and therefore, the said order of Ext. P-2 will stand set aside. The Trial Court is directed to return back the affidavit submitted by the accused. 10. However, made clear that the Trial Court should permit the accused to ensure that in case, it is so voluntarily opted by the accused to examine himself as a defence witness, then the Trial Court should allow the D.W.-1 (accused) to tender his oral evidence, in terms of section 315 of the Cr.P.C. The petitioner will produce a certified copy of this order before the Trial Court for necessary information. 11. With these observations and directions the O.P. (Crl) will stand disposed of. Petition Disposed Of.