Judgment

S.B. Sinha, J.

Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 9.5.2008 passed by a learned Single Judge of the High Court of Delhi at New Delhi in Criminal M.C. No.1522 of 2008.

3. Respondent filed a complaint petition in the Court of Chief Metropolitan Magistrate, Delhi on or about 7.6.2004 which was marked as Criminal Complaint Case No.882/1 of 2004 for commission of an alleged offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, `the Act'). Pre-summoning evidence by the complainant was recorded by way of an affidavit. Cognizance of the offence was taken and summons was directed to be issued by an order dated 9.6.2004. Post-summoning evidence was also adduced by the complainant on 26.3.2007 by way of an affidavit.

4. It now appears that respondent examined himself and was cross-examined at length. His cross-examination started 12.9.2008. It runs into nine typed pages. Indisputably, prior to offering himself for cross-examination, appellant proved his affidavits which were marked as Exhibits CW1/A to CW1/1. A large number of questions were asked to the deponent on the contents of the affidavits.

5. It, however, appears that an application purported to be under Section 145(2) of the Act was filed by the appellant on 7.3.2008 which by reason of an order dated 14.3.2008 was dismissed. Appellant filed an application before the High Court purported to be under Section 482 of the Code of Criminal Procedure for setting aside the said order.

By reason of the impugned judgment, the same has been dismissed.

6. Mr. Vishal Aggarwal, learned counsel appearing on behalf of the appellant, would contend that on a plain reading of Section 145 of the Act, it would be evident that the same is imperative in character. By reason of the said provision, it was urged, the court has no other option but to examine a witness including the complainant who had affirmed an affidavit in support of his statement. Drawing our attention to the provisions of sub-section (2) of Section 296 of the Code of Criminal Procedure, the learned counsel would urge that the same being in pari materia with Section 145 of the Act, the learned Trial Judge as also the High Court must be held to have committed a serious error in passing the impugned judgment.

7. Respondent who, however, has appeared in person drew our attention to some disturbing facts, namely, the signatures of the appellant appearing at the end of the verification portion which is at page 39 of the paper book as also his signatures appearing in the affidavit affirmed in support of the application for stay to contend that even with a naked eye, the same would appear to be different. Our attention was furthermore drawn to the fact that although in the affidavit affirmed by the appellant in support of the application for stay is dated 31.7.2008, the same appears to have been drafted on 16.9.2008 and filed on 19.9.2008. We may, however, notice that in our copy, the said application was said to have been drawn on 30.7.2008 and filed on 31.7.2008.

8. Before, however, we advert thereto, we may place on record that the respondent herein in his affidavit has stated as under :

"4. That cross-examination of the respondent in trial Court in complaint No.882/1 of 2004 (presently numbered as 521/07) had already been completed on 12th September, 2009 before filing of the abovementioned petition on 19.09.2008. A certified copy of the cross-examination of the respondent is enclosed-Annexure R-1.

5. That while applying for stay this material fact of respondent's examination already being over was not brought to the notice of this Hon'ble Court and was hidden from this Hon'ble Court. The petitioner has got opportunity to examine the respondent and has already availed the same on the point sought to be considered in Special Leave Petition No.7487 of 2008 filed by the petitioner.

6. That the respondent has also been examined by the counsel