The main legal point established in the judgment is the mandatory duty of the court to summon and examine the person giving evidence on affidavit as per the application of prosecution or the accused under Section 145(2) of NI Act, emphasizing the importance of fair trial to the accused and the legislative intent behind the use of 'may' and 'shall' in Section 145(2) of NI Act.

JUDGMENT

Vivek Singh Thakur, J. - Present petition has been filed assailing the impugned order dated 8.4.2019 passed by Additional Chief Judicial Magistrate-I, Amb, District Una, whereby an application, filed on behalf of accused/petitioner under Section 145(2) of Negotiable Instrument Act ('NI Act' in short), has been dismissed.

2. I have heard learned counsel for the parties and have also gone through the record.

3. It is evident from the record that the petitioner/accused was summoned by the trial Court on the basis of statements/affidavit filed by and on behalf of complainant/respondent and after receiving the notice from the trial Court, petitioner/accused had appeared in the Court on 6.12.2017.

4. On 27.8.2018, before putting Notice of Accusation, time, as prayed for, was granted to the petitioner/accused by the trial Court for filing an application under Section 145 of NI Act and the application, so filed, was dismissed vide impugned order passed on 8.4.2019, rejecting the request of petitioner/accused to summon and examine the witnesses, whose affidavits have been filed by the respondent/complainant in support of his case.

5. Point, raised by petitioner in the present petition, is that in an application, filed by the accused or prosecution under Section 145(2) of NI Act for summoning and examining any person giving the evidence on affidavit, the Court has no discretion to refuse to summon and examine such person as to the facts contained in the affidavit filed by the said person. To substantiate his plea, judgment pronounced by the Apex Court in Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore, (2010) 3 SCC 83, has been referred.

6. On perusal of record of the trial Court, it is noticed that the trial Judge has also ventured in discussing the merits of case on the basis of plea taken by accused in the application, despite the fact that there was no occasion to discuss the same at this stage that too in an application filed under Section 145(2) of NI Act.

7. Besides above, it is also noticed that on 27.08.2018 on request of accused, without resorting to record substance of accusation or putting Notice of Accusation or framing the charge, and recording response of accused thereto, the Magistrate had granted time to the accused to file an application under Section 145 of Negotiable Instrument Act that too without giving an opportunity to the complainant to file/lead any further evidence, if any, which he would have intended to bring on record after commencement of trial. For discussion hereinafter, I am of considered view that on this count trial Court has committed a mistake of law.

8. Section 145 of Negotiable Instrument Act reads as under:-

"Section 145 of Negotiable Instruments Act 1881:

"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. On the issue, raised in this case, the Apex Court in Mandvi Cooperative Bank's case, has held that two words i.e. 'may' and 'shall' in Section 145(2) NI Act have been used by the Legislature with reference to the 'Court' and with reference to the 'prosecution or accused' respectively and therefore, it is beyond doubt that in the event of an application made by the prosecution or accused, the Court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) of NI Act without having any discretion in the matter and therefore, if an application is made under Section 145(2) of NI Act either by prosecution or by the accused, the Court must call the person, who has given evidence on affidavit, for examining him again as to