Heard the learned counsel for the petitioner and perused the records.

2. The petitioner has sought for quashing of the order dated 14.6.2018 passed in CC No. 949/2018 by the learned SCCH26, XXIV ASCJ & XXII ACMM, Bengaluru. The learned Trial Judge after appearance of the accused and recording his plea, has posted the case for cross examination of PW1 on the application filed u/s.145(2) of the Negotiable Instruments Act, by the accused.

3. The learned counsel for the petitioner submitted that the trial Court has been proceeding with the evidence by way of affidavit and the documents marked by the respondent at the time of sworn statement itself and that should not have been done by the trial Judge and it should have insisted for fresh affidavit and marked the documents afresh after appearance of the accused before the court.

4. In this regard, Section 145 of the Negotiable Instruments Act Evidence on affidavit, is the answer to the ground raised by the learned counsel. The said provision is a special provision which says that –

“Notwithstanding anything contained in the Cr.P.C. 1973, 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.” Sub clause (2) of Section 145 of the Act says that – “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.”

5. On plain reading of the above said provisions, it is clear that, when once an affidavit is filed by the complainant and the documents produced are got marked, and the evidence has been led by way of an affidavit, either at the time of inquiry or at the time of trial, unless it is disputed, it can be read as evidence by the court, at any stage. However, Section 145(2) of the Negotiable Instruments Act provides an opportunity to the complainant and the accused to recall any witness who has already been examined for the purpose of further examination or for cross examination on the application filed by them. This has been made very much clear in a decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 between Indian Bank Association and others Vs. Union of India and others. At paragraphs 23.4, it is made clear as follows :

“23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.”

At paragraph 23.5 of the said judgment, it has been made further clear as follows–

23.5. The court concerned must ensure that examination-in-chief, cross examination and reexamination of the complaint must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court. (Emphasis supplied)

6. Therefore, on a meaningful understanding of the above said provision and the decision, in order to avoid unnecessary delay in the matter, it is said that immediately after recording of the plea, unless an application is made by the accused for cross examination of the witnesses already examined, the case has to be posted for defence evidence. It goes without saying that the evidence already recorded, at the time of recording of the sworn statement by way of affidavit during inquiry can be treated as evidence by the court for the purpose of allowing the accused for cross examination, if the complainant does not want to further examine himself by way of any further affidavit or producing any further document.

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