The evidence in re-examination cannot be given by the complainant by filing an affidavit, as it would be contrary to the scheme of the provisions of the Evidence Act and the concept of fairness.

By consent, Rule made returnable forthwith. By consent, heard finally.

2. The petitioner is the accused no.3 in C.C.No.4654/SS/2005, pending before the Metropolitan Magistrate, 12th Court, Bandra, Mumbai. The said case is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act (N.I.Act). The respondent no.1 is the complainant therein, on whose complaint, the case has been instituted. The respondent no.1's (hereinafter referred to as the complainant) affidavit in lieu of the examination in chief was tendered in the court. He was thereafter, cross examined on behalf of the petitioner. After the cross examination of the complainant was over, the counsel for the complainant submitted that he wanted to re-examine the complainant for certain purposes and for producing and proving certain documents. The Magistrate therefore adjourned the case for hearing on the application of reexamination, which was opposed to by the petitioner herein. The Magistrate, however, by his order dated 21.3.2012, allowed the application in the following terms :

"Application for permission to re-examine the complainant is allowed as prayed for. The complainant is allowed to be re-examined in respect of the documents sought to be produced by complainant which are produced in the course of conducting his cross-examination in the interest of justice. No cost."

"Matter is adjourned to 4th April 2012 at 11.00 p.m. for reexamination.

3. Being dissatisfied by that order, the petitioner approached the court of Sessions in revision, but the court of Sessions dismissed the revision. This is how, the petitioner has approached this court, by filing the present petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.) and praying that the order dated 21.3.2012 passed by the Magistrate, be quashed and set aside.

4. I have heard Mr.Mayur Sonawane, the learned counsel for the petitioner, and Mrs.Pravina Kanani, the learned counsel for the original complainant.

5. Though the petitioner has challenged the permissibility of permitting the complainant to be re-examined, in the oral arguments advanced before me, this challenge is given up. What is submitted is that, if at all the complainant is to be re-examined, he cannot be permitted to file an affidavit in lieu of the re-examination. In view of this concession, I have not gone into the correctness or otherwise of the order, permitting the complainant to be re-examined.

6. Since the order passed by the Magistrate only mentions that "the complainant is allowed to be re-examined........" it was not clear whether the Magistrate intended that the re-examination should be done in the normal way by putting the complainant in the witness box and by allowing him to be examined by his counsel. However, Mr.Sonawane, as well as Mrs.Kanani, both stated before me that it was understood that the Magistrate would be accepting the affidavit of the complainant in lieu of reexamination, and the order passed by him permitting the complainant to be reexamined, is actually meant to be "an order permitting the complainant to file an affidavit in lieu of the reexamination."

7. Now, the only limited question that arises is whether the evidence of the complainant in re-examination can be given by an affidavit.

8. The only basis for claiming that it can be done, is the provision of Section 145 of the N.I.Act., which reads as under :

"S.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.

(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."

9. Mrs.Kanani, the learned counsel for the complainant, submitted