P. C.: - Heard the learned counsel for the applicant i.e. original accused, learned advocate for respondent i.e. original complainant and the learned A.P.P. for the State.

2. The applicant is facing prosecution in Criminal Case No. 796/S/2001 which is pending before the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai. The said case is under section 138 of Negotiable Instruments Act. In the said case the complainant has filed an affidavit of evidence by way of examination - in - chief as per amended provisions under section 145(2) of Negotiable Instruments Act. The said affidavit was taken on record.

3. The applicant had preferred an application before the learned Magistrate for calling the complainant for recording his examination - in - chief. By order dated 18 - 5 - 2005, the learned Magistrate rejected the said application. Being aggrieved by the said order, this application has been preferred.

4. The learned advocate for the applicant has submitted that various facts are introduced in the examination - in - chief in the form of affidavit which do not find place in the complaint, this would cause prejudice to the applicant hence the complainant ought to be directed to lead oral evidence in the form of examination - in - chief. However, it is pertinent to note that the evidence in the form of affidavit is subjected to cross - examination under section 145 of Negotiable Instruments Act. In such case all the omissions or contradictions can be brought on record during the course of cross - examination. Hence, there can be no question of prejudice to the accused.

5. In view of the amended provisions of section 145 of Negotiable Instruments Act, the complainant is entitled to lead evidence by way of an affidavit. The Division Bench of this Court in the case of KSL and Industries Ltd. V. Mannalal Khandelwal and anr. reported in 2005 Cri.L.J. 1201, has held that the evidence of the complainant in respect of his examination - in - chief can be taken on affidavit. If evidence of the complainant is taken on affidavit, it would not be necessary to again record examination - in - chief of the complainant whose affidavit of examination - in - chief is already filed. The Division Bench was specifically considering the issue i.e. whether, in spite of mandate of section 145( 1) of the Act, the Court is obliged to examine the complainant even in respect of matters which have been stated in affidavit. The said issue has been decided in paras 38 and 39 which read as under:_

"38. 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 enquiry, 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 enquiry, trial or other proceeding, and it may be subject to all just exceptions.

39. 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."

6. This issue also came to be considered by a Single Judge of this Court in the decision dated 25 - 7 - 2005 in Criminal Writ Petition No. 1274 of 2005 (M/s Indo International Ltd. and anr. V. State of Maharashtra and anr). After considering the decision of the Division Bench, the Single Judge of this Court has observed thus: -

Thus, the law laid down by the Division Bench in the decision of KSL Industries can be summarised as und

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