Dantuluri Vekataramaraju Vs. Katta Narayan Rao and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....ordera. gopal reddy, j.1. the short question that arises for consideration in this petition under section 482, cr. p.c., is as to whether on an application filed by the accused under sub-section (2) of section 145 of the negotiable instruments ad, 1881 the court is obliged to examine the complainant in chief even in respect of matters which have been stated by him on affidavit in spite of mandate of section 145(1)?2. the facts in nutshell which give rise to the controversy are as under: in the proceedings initiated under section 138 of the negotiable instruments act, 1881 (for short 'the act') in cc no. 391/2003 on the file of ii additional chief metropolitan magistrate, visakhapatnam, the petitioner-accused filed petition in ddr no. 10385/2005 to examine the complainant-in-chief who.....

Judgment:
ORDER

A. Gopal Reddy, J.

1. The short question that arises for consideration in this petition under Section 482, Cr. P.C., is as to whether on an application filed by the accused under Sub-section (2) of Section 145 of the Negotiable Instruments Ad, 1881 the Court is obliged to examine the complainant in chief even in respect of matters which have been stated by him on affidavit in spite of mandate of Section 145(1)?

2. The facts in nutshell which give rise to the controversy are as under: In the proceedings initiated under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') in CC No. 391/2003 on the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam, the petitioner-accused filed petition in DDR No. 10385/2005 to examine the complainant-in-chief who filed an affidavit under Section 145(1) of the Act. The learned Magistrate by the impugned order dt. 29-11 -2005 dismissed the said petition. On such dismissal, the petitioner moved this Court under Section 482, Cr. P.C., for quashing the said order and for directing the Magistrate to summon and examine the first respondent-complainant in chief in respect of the matters which have been stated by him in his affidavit filed in lieu of chief-examination.

3. Learned Counsel for the petitioner would strenuously urge that once accused files petition under Sub-section (2) of Section 145(1), the Court has no option except to summon and examine the complainant in respect of the matters which have been stated in the affidavit. He would further contend that the main object while carrying out amendment to the Act through the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act No. 55 of 2002) is only to prescribe the procedure dispensing with the preliminary evidence of the complainant but not with regard to substantial evidence, which he has to lead during the course of trial. In view of the same, learned Magistrate committed a manifest illegality in dismissing the petition filed for summoning the complainant and to examine him in Court as to the facts contained in the affidavit.

4. A perusal of the Statement of Objects and Reasons while inserting Sections 143 - 147 though the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002) would disclose that on the recommendation of the Working Group along with other representations from various institutions and organizations, the Government in consultation with the Reserve Bank of India and other legal experts amended the Negotiable Instruments Act, 1881 suitably by insertion of the above provisions to dispose of the cases expeditiously in a time bound manner in view of the procedure contained in the Act. Further it is clearly stated that the Parliament enacted the Amending Act, which is intended among other things, to prescribe procedure for dispensing with preliminary evidence of the complainant.

5. To resolve the controversy involved, it is useful to extract the relevant provision i.e., Section 145(1) of the Act, which reads as under:

Evidence on affidavit: (1) Notwithstanding anything contained in the 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.

6. Section 145(1) is in part materia with Section 296 of the Code of Criminal Procedure. Section 296 reads as under:

Evidence of formal character on affidavit.- (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

7. Learned Counsel for the petitioner by placing reliance on the judgment of the Supreme Court in State of Punjab v. Naib Din 2002 SCC (Crl) 33 : 2001 Cri LJ 4656 would contend that once the normal code of giving evidence by examining witness in the Court has been departed, the same can only be relate to formal but not to substantial evidence and if any party to a lis wishes to examine the deponent of the affidavit, it is open to him to make an application before the Court that he requires the deponent to be examined and cross-examined in Court and Court has no option except to examine him in Court.

8. In Naib Din 2001 Cri LJ 4656 (supra) the Supreme Court while considering Section 296 of the Code of Criminal Procedure held as under (Paras 7 & 8):

The normal mode of giving evidence is by examining the witness in Court. But that course involves, quite often, spending of time of the witness, the trouble to reach the Court and wait till he is called by the Court, besides all the strain in answering questions and cross-questions in open Court. It also involves costs which on many occasions are not small. Should a person be troubled by compelling him to go to the Court and depose if the evidence which he is to give is purely of a formal nature? The enabling provision of Section 296 is thus a departure from the usual mode of giving evidence. The object of providing such an exception is to help the Court to gain the time and cost, besides relieving the witness of his troubles, when all that the said witness has to say in Court relates only to some formal points.

What is meant by an evidence of a formal character? It depends upon the facts of the case. Quite often different steps adopted by police officers during the investigation might relate to formalities prescribed by law, Evidence, if necessary on those formalities, should normally be tendered by affidavits end not by examining all such policemen in Court, If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the Court that he requires the deponent to be examined or Gross-examined in Court, This is provided in Sub-section (2) of Section 296 of the Coda. When any such application is made it is the duty of the Court to call such person to the Court for the purpose of being examined.

9. Section 145(1) of the Act which was inserted with an object to prescribe the procedure for dispensing with preliminary evidence of the complainant and for speedy disposal, mandates notwithstanding anything contained in the Code of Criminal Procedure, 1973 the evidence of the complainant may be given by him on an affidavit and may, subject to all Just exceptions, be read in evidence in any enquiry, trial or other proceeding under the said Code.

10. 'Evidence' has been defined under Section 3 of the Indian Evidence Act, which reads as under:

'Evidence' means and includes-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matter of fact under Inquiry:

(2) all documents produced for the Inspection of the Court, such documents are called documentary evidence.

11. From the above definition, it is clear that statements which the Court permits or requires to be made before it by the witnesses, in relation to matter of facts under inquiry, are treated as oral evidence. Under Section 145 of the Act once the Court permits the complainant or other person who are required to make statement before it in relation to matters of enquiry by way of affidavit which can also be treated as oral evidence as per the definition under Section 3 of the Evidence Act.

12. Justice Dalveer Bhandari (as he then was) speaking for the Division Bench of Bombay High Court in KSL Industries Limited v. Mannalal Khandelwal and Anr. III (2005) BC 500 (DB) : 2005 Cri LJ 1201 after considering the Statement of Objects and Reasons in inserting Section 145(1) through the Amending Act, 2002 held as under:

Sub-section (1) of Section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence, If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of Sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any inquiry, trial or other proceeding, and it may be subject to all just exceptions. (Para 38)

We are clearly of the opinion that according to the language of Section 145 of the Act, the evidence (examination-in-chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he/ she may request the Court to call the complainant for cross-examination. (Para 39)

13. The Bombay High Court in Indo-International Limited, Chennai v. State of Maharashtra 2006 Cri LJ 208 while interpreting the usage of word 'examination' in the context of Sub-section (2) of Section 145 held that once application is made by the accused, a witness examined by the complainant by filing an affidavit of examination-in-chief will have to be summoned, but rejected the submission made by the counsel that 'examination' as defined in the Indian Evidence Act includes examination-in-chief, cross-examination and re-examination, therefore the complainant or witnesses have to be examined in chief. It was further held that when the statute has referred to word 'examination', the said word will have to be given a meaning with reference to the context in which it is used and the word 'examination' has been obviously used in Sub-section (2) in the context of the right of cross-examination of the rival party in case evidence is led of a witness on affidavit. Thus, the mandatory provision of Sub-section (2) is that the Court has to call the witness whose affidavit in examination-in-chief is fied for cross-examination by the rival party when a petition under Sub-section (2) of Section 145 is made. After completion of cross-examination, the Magistrate will have to permit re-examination, if necessary, in accordance with the law of evidence,

14. The Legislature by Inserting Sections 143 - 147, given a complete freedom to the complainant under Sub-section (1) of Section 145 either to give his evidence by way of affidavit or by way of oral evidence. If this case is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of Sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read In evidence In any enquiry, trial or other proceedings. Thus, it is clear that once the evidence of the complainant is given on affidavit, It may be read in evidence in any enquiry, trial or other proceedings, and it may be subject to all just exceptions, as the same has been permitted by law and same Is evidence as defined under Section 3 of the Evidence Act, as referred to above,

15. Having regard to the fact that Section 145 of the Act, which provides the evidence of complainant can be given on affidavit, begins with non obstante clause having overriding effect to prevail over the Code of Criminal Procedure and prescribe procedure of its own, the principles laid down in Naib Din (2001 Cri LJ 4656) (supra) are not applicable to the proceedings Initiated for the offence punishable under Section 138 of the Act. In view of the interpretation given to Section 145 by the Bombay High Court, I see no force in the submission made by the learned Counsel for the petitioner-accused that the Magistrate has to summon the complainant to examine him in chief on facts stated in the affidavit, But the trial Court cannot dismiss the petition. Once the said petition is filed, it is for the trial Court to call the complainant whose affidavit in examination-in-chief is filed for cross-examination by the rival party, without going into the technicalities that the petition filed for summoning the complainant to examine him in chief only. In that view of the matter, dismissing the petition by the trial Court is not at all warranted and the same is liable to be allowed for enabling the petitioner/accused to cross-examine the complainant and re-examination of the complainant, if necessary, after cross-examination.

16. The Criminal Petition is accordingly allowed.