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2010 (1) Supreme
SUPREME COURT OF INDIA
Tarun Chatterjee and Aftab Alam, JJ.
M/s. Mandvi Co-Op. Bank Ltd. — Appellant
versus
Nimesh B. Thakore — Respondent
With Criminal Appeal No. (s). 72 of 2010
with
73, 74, 75, 76, 77 and 78 of 2010
Decided on : 11-01-2010
(b) Negotiable Instruments Act, 1881 – Section 145 – Complainant or his witnesses who have already given evidence on affidavit cannot be required to depose in examination-in-chief all over again. (Para 20)
(c) Negotiable Instruments Act, 1881 – Section 145 – It is not necessary that the witness summoned for cross-examination must start his deposition with examination-in-chief already given on affidavit. (Para 22)
(2001) 8 SCC 61; (2005) 2 SCC 271; (2007) 2 SCC 230 – Distinguished
(d) Evidence Act, 1882 – Section 137 – Section 137 simply defines “examination-in- chief”, “cross-examination” and “re-examination” – It does not define “examine” to mean and include the three kinds of examination of a witness. (Para 22)
(e) Negotiable Instruments Act, 1881 – Chapter XVII – The scheme of sections 143 to 146 does not in any way affect the judge’s powers under section 165 of the Evidence Act. (Para 22)
(f) Negotiable Instruments Act, 1881 – Section 145 – Deponent of the affidavit can only be subjected to cross-examination as to the facts stated in the affidavit – A person who has given his evidence on affidavit and has been cross-examined can be summoned for “re-examination” – A witness can also be summoned to cure the defect and to have the document(s) properly proved by following the correct legal mode. (Para 22)
(g) Code of Criminal Procedure, 1973 – Section 296 – Section 296(2) of the Code does not have any relevance or application to the trial concerning a dishonoured cheque under sections 143 to 146 of the N.I. Act. (Para 25)
(2001) 8 SCC 578 – Distinguished
(h) Words and Phrases – Affidavit – Evidence given on affidavit is “subject to all just exceptions” meaning thereby that the evidence so given must not include inadmissible materials – In case the affidavit contains statements that are not admissible in evidence it is always open to the accused to point those out to the court to be dealt with in accordance with law. (Para 26)
(i) Negotiable Instruments Act, 1881 – Chapter XVII – Provisions of sections 143 to 147 do not take away any substantive rights of the accused – These provisions are not substantive but procedural in nature and would, therefore, apply to the cases that were pending on the date the provisions came into force. (Para 28)
1990 (1) SCC 445 – Relied upon
(j) Negotiable Instruments Act, 1881 – Section 145 – Complainant permitted to give evidence on affidavit but not the accused – There is basic difference between the nature of the evidence of the complainant and that of the accused in a case of dishonoured cheque – Both cannot be equated. (Para 32)
(k) Interpretation of Statutes – In the guise of interpretation it is not permissible for the court to make additions in the law and to read into it something that is just not there. (Para 35)
1992 Supp. (1) SCC 323; (2007) 2 SCC 230; [1980] 1 All ER 529, 534 – Relied upon.
Facts of the case:
1. The special provisions laid down by section 145 of the Negotiable Instruments Act, 1881 for a dishonoured cheque trial are required to be considered in these appeals.
2. The issues in question are : The extent of the right of the accused under section 145(2) of the Act; Whether the provisions of sub-sections (1) and (2) of section 145 of the Act would apply to proceedings that were pending on February 6, 2003, the date on which those provisions were inserted in the Act? And, whether the right to give evidence on affidavit as provided to the complainant under section 145(1) of the Act is also available to the accused?
Finding of the Court:
The impugned judgment does not suffer from any infirmity except that evidence of the complainant and the accused cannot be equated.
Result:
Appeal arising from SLP (Crl.) No. 3915/2006 is allowed. All the remaining six appeals are dismissed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
JUDGMENT
Aftab Alam, J.
1. Leave granted
2. In these appeals we are required to consider the special provisions laid down by section 145 of the Negotiable Instruments Act, 1881 (‘the Act’, hereinafter) for a dishonoured cheque trial and to consider how far certain assertions made by the accused are in accordance with the provisions contained in the two sub-sections of that section.
3. The High Court had before it a large number of writ petitions and applications under section 482 of the Code of Criminal Procedure. Most of those petitions were filed on behalf of the accused but a few were also at the instance of the complainants. On the basis of the grievances made and reliefs prayed for in those petitions the High Court framed the following two questions as arising for its consideration:
“(A) Whether sub-section (2) of section 145 of the Negotiable Instruments Act, 1881, (for short, “the Act”) confers an unfettered right on the complainant and the accused to apply to the court seeking direction to give oral examination-in-chief of a person giving evidence on affidavit, even in respect of the facts stated therein and that if such a right is exercised, whether the court is obliged to examine such a person in spite of the mandate of section 145(1) of the Act?
(B) Whether the provisions of section 145 of the Act, as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, (for short “the amending Act of 2002”) are applicable to the complaints under section 138 of the Act pending on the date on which the amendment came into force? In other words, do the amended provisions of section 145(1) and (2) of the Act operate retrospectively? “
4. Answering the questions after a detailed and careful consideration of all the relevant provisions and earlier decisions of courts, the High Court held that the person (complainant or his witness) giving evidence on affidavit may be summoned by the court for putting questions as envisaged under section 165 of the Evidence Act (vide paragraph 24 of the judgment). He would also be summoned on an application made by the accused but the right of the accused is limited to cross-examination of the witness. In terms of section 145(2) the accused can undoubtedly cross- examine a person whose evidence is given on affidavit but the accused cannot insist that the witness, on coming to court, should first depose in examination-in-chief even in respect of matters which are already stated by him on affidavit (vide paragraph 25 of the judgment). The High Court further explained that for the prosecution the occasion to summon any of its witnesses who have given their evidence on affidavit may arise in two ways. The prosecution may summon a person who has given his evidence on affidavit and has been cross-examined for “re-examination”. This right of the prosecution, the High Court observed, was not in dispute before it. The prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit. In that event the witness may be summoned to appear before the court to cure the defect and to have the document(s) properly proved by following the correct legal mode (vide paragraph 26 of the judgment).
5. The High Court then considered the claim of the accused that any evidence in defence, like the complainant’s evidence, may also be given on affidavit. It upheld the claim observing as follows: “....Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code.........I find no justified reason to refuse permission to the accus
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