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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Evidence of the complainant in a Section 138 matter can be given on affidavit, supported by relevant documents such as bank slips, without the necessity of recording further preliminary evidence, provided the court summons the complainant and witnesses for examination if required ["Cassius Infracon Private Limited VS Vidhyadhar Vttam Kerkar, S/o. Late Mr. Uttam Anant Kerkar - Bombay"].
The trial court has the discretion to read affidavits of the complainant as evidence during inquiry or trial, especially in cases involving documentary evidence like dishonored cheques, which facilitates expeditious proceedings ["Cassius Infracon Private Limited VS Vidhyadhar Vttam Kerkar, S/o. Late Mr. Uttam Anant Kerkar - Bombay"], ["- Himachal Pradesh"].
When the complainant is hearing impaired, the court can conduct the trial by allowing evidence to be given via affidavit, and such affidavits can be read in evidence, thus accommodating the complainant's hearing impairment and ensuring the trial proceeds effectively ["Zaheda Inamdhar, W/o. Sherkhan M. Inamdhar VS Fatima Hassina Sayeedha - Karnataka"].
The court should record the reasons for opting for a summons trial after hearing the parties, and the chief examination of the complainant may be conducted in a manner that is comprehensive enough to serve as full evidence, including via affidavit, especially for hearing-impaired witnesses ["TRIMURTI EXPORTS & ORS. Vs MODELAMA EXPORTS LTD - Delhi"].
In cases where the complainant is hearing impaired, the court can facilitate the trial by allowing the complainant to give evidence through affidavits, which can be read as part of the record, thus ensuring the complainant’s testimony is duly considered without the need for oral examination ["Satish Chand Singhal VS State of Gujarat and Ors. - Dishonour Of Cheque"].
The conduct of the complainant, such as failure to appear or provide evidence, can lead to dismissal or adjournment, but the court may also consider alternative modes of evidence, like affidavits, to ensure the trial's progress, especially when the complainant has hearing difficulties ["Cassius Infracon Private Limited VS Vidhyadhar Vttam Kerkar, S/o. Late Mr. Uttam Anant Kerkar - Bombay"], ["- Himachal Pradesh"].
Analysis and Conclusion:- Courts can conduct trials in Section 138 cases involving hearing-impaired complainants by permitting evidence through affidavits, which can be read into the record, thereby accommodating their disability and expediting the process ["Zaheda Inamdhar, W/o. Sherkhan M. Inamdhar VS Fatima Hassina Sayeedha - Karnataka"], ["- Himachal Pradesh"], ["Satish Chand Singhal VS State of Gujarat and Ors. - Dishonour Of Cheque"].- Proper judicial procedures include summoning the complainant and witnesses, recording reasons for trial mode, and allowing affidavits to serve as full evidence, ensuring fairness and efficiency ["Cassius Infracon Private Limited VS Vidhyadhar Vttam Kerkar, S/o. Late Mr. Uttam Anant Kerkar - Bombay"], ["TRIMURTI EXPORTS & ORS. Vs MODELAMA EXPORTS LTD - Delhi"].- Ensuring the complainant’s hearing impairment does not hinder the trial process involves flexible evidence recording methods, primarily affidavits, which courts are empowered to accept and read in evidence ["Zaheda Inamdhar, W/o. Sherkhan M. Inamdhar VS Fatima Hassina Sayeedha - Karnataka"], ["Satish Chand Singhal VS State of Gujarat and Ors. - Dishonour Of Cheque"].- Overall, the legal framework supports conducting Section 138 trials with adaptations for hearing-impaired complainants, emphasizing affidavits and written evidence to uphold the rights of disabled witnesses while maintaining procedural integrity ["Cassius Infracon Private Limited VS Vidhyadhar Vttam Kerkar, S/o. Late Mr. Uttam Anant Kerkar - Bombay"].
In the fast-paced world of cheque bounce cases under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), ensuring a fair trial is paramount, especially when the complainant has a hearing impairment. How can a court conduct a trial in a Section 138 matter to record evidence from such a complainant effectively? This question arises frequently in Indian courts, where accessibility and procedural fairness must align with statutory mandates.
This blog post explores the legal framework, step-by-step procedures, and practical recommendations, drawing from key judicial precedents and statutory provisions. While this provides general insights, it is not a substitute for professional legal advice—consult a qualified lawyer for case-specific guidance.
Under Section 119 of the Indian Evidence Act, 1872, persons who cannot speak due to hearing impairment (often referred to as deaf and dumb witnesses) can give evidence in any manner that renders it intelligible, such as through signs, writing, or gestures. The Supreme Court has affirmed that such witnesses are competent to testify, provided the court verifies their understanding of the oath and proceedings Bhim Bahadur Basnett vs State of Sikkim - 2023 0 Supreme(Sikk) 16.
Section 119 of the Indian Evidence Act recognizes that persons who cannot speak may give evidence in any manner that makes their testimony intelligible, including signs or writing, with the court’s assistance Rajesh Agarwal VS State - Dishonour Of Cheque (2010).
Courts must exercise caution to ensure the witness possesses sufficient intelligence and comprehends the testimony's nature Pawan Singhal VS Gauri shankar deora - 2012 0 Supreme(Del) 2449. This framework applies seamlessly to summary trials under Section 138 NI Act, where expeditious proceedings are mandated under Section 143 NI Act.
Recording evidence from a hearing-impaired complainant requires meticulous adherence to protocols:
Verify Competence: Before administering the oath, the court ascertains the witness's intelligence and understanding, often with a special educator's help Pawan Singhal VS Gauri shankar deora - 2012 0 Supreme(Del) 2449.
Use Assistive Measures: Employ qualified sign language interpreters or special educators. The process should be video-recorded for transparency Rajesh Agarwal VS State - Dishonour Of Cheque (2010)Bhim Bahadur Basnett vs State of Sikkim - 2023 0 Supreme(Sikk) 16.
Written or Sign-Based Testimony: If the complainant can read/write, questions are posed in writing, and answers recorded similarly for clarity Bhim Bahadur Basnett vs State of Sikkim - 2023 0 Supreme(Sikk) 16. Signs interpreted by a neutral expert are also valid.
Interpreter Scrutiny: Courts must confirm the interpreter's qualifications and independence to avoid bias Rajesh Agarwal VS State - Dishonour Of Cheque (2010).
In Section 138 cases, affidavits play a crucial role. The affidavit of complainant as evidence was filed before the trial may, subject to all just exceptions be read in evidence in any enquiry, trial FIRM TIRUPATI TEL GHANNI UDHYOG vs STATE OF RAJASTHAN AND ANR. This allows pre-trial filing, with the court reading it during proceedings, reducing the need for live testimony if accessibility issues persist.
Section 138 trials emphasize speed, aiming for conclusion within six months Dipali Enterprises, Nilanga VS Sanjay - 2019 Supreme(Bom) 903. For hearing-impaired complainants:
Affidavit as Primary Evidence: File at the pre-trial stage and read in court Ravichandran VS State Represented by the Inspector of Police - Crimes (2022). This is particularly useful, as seen in cases where complainants' affidavits suffice unless challenged.
Live Testimony with Aids: If required, record via sign language interpreters, ensuring video documentation Rajesh Agarwal VS State - Dishonour Of Cheque (2010).
Credibility Checks: Courts verify methods and record reasons for reliance on such evidence Pawan Singhal VS Gauri shankar deora - 2012 0 Supreme(Del) 2449. Failure to follow can lead to challenges, as in acquittals due to procedural lapses Dipali Enterprises, Nilanga VS Sanjay - 2019 Supreme(Bom) 903.
Related precedents highlight diligence: In one case, dismissal for non-prosecution occurred due to the complainant's lethargy, underscoring the need for proactive evidence presentation Dipali Enterprises, Nilanga VS Sanjay - 2019 Supreme(Bom) 903. Despite the warning of dismissal of matter on particular dates, the appellant-complainant did not take precaution with due diligence to adduce evidence Dipali Enterprises, Nilanga VS Sanjay - 2019 Supreme(Bom) 903.
Courts have addressed evidence handling in Section 138 matters broadly:
Affidavits and Proxies: Power of attorney holders can prosecute, but principal evidence often requires the complainant's affidavit or appearance. Non-examination isn't always fatal if the proxy has personal knowledge Omprakash VS L. Sunitha - 2015 Supreme(AP) 4Omprakash VS L. Sunitha - 2015 Supreme(AP) 7.
Recalling Witnesses: Discretionary power exists post-trial for justice, without prejudice OOI CHENG HUAT @ OOI PENG HUAT & ORS vs SIME DARBY PROPERTY BERHAD & OTHER CASES. The court has discretionary power to recall witnesses and reopen cases post-trial to ensure justice, provided strong reasons are presented OOI CHENG HUAT @ OOI PENG HUAT & ORS vs SIME DARBY PROPERTY BERHAD & OTHER CASES.
Burden and Presumptions: Complainants must prove enforceable debt; presumptions under Sections 118/139 NI Act are rebuttable TIRATH KALIA VS ANDRESH - 2015 Supreme(P&H) 2304. The complainant must prove the existence of a legally enforceable debt to invoke Section 138 TIRATH KALIA VS ANDRESH - 2015 Supreme(P&H) 2304.
Technical Nature: Offences are technical; accused bear defence onus under Section 106 Evidence Act Nitin Chadha VS Swastik Vegetable Products Pvt. Ltd. - 2015 Supreme(P&H) 1005. No guilt presumption arises from failed defence.
These reinforce that hearing-impaired evidence, if properly recorded, holds equal weight, preventing dismissals on disability grounds alone.
Not all cases proceed smoothly:
Inadmissibility Risks: If understanding can't be established, evidence may need corroboration or exclusion Pawan Singhal VS Gauri shankar deora - 2012 0 Supreme(Del) 2449.
No Sole Reliance on Affidavits: Courts must attempt accessible testimony unless impossibility is proven.
Recommendations for stakeholders:
Appoint certified interpreters and mandate video recording.
Train judicial officers on disability-inclusive procedures under Section 119 Evidence Act.
Lawyers: Prepare comprehensive affidavits highlighting impairments early C.Suresh vs K.Sethu - 2024 Supreme(Online)(MAD) 8499.
Ensure day-to-day trials per Section 143 NI Act, avoiding delays Dipali Enterprises, Nilanga VS Sanjay - 2019 Supreme(Bom) 903.
Hearing-impaired complainants' evidence is admissible via affidavits, writing, or interpreted signs, backed by Section 119 Evidence Act Rajesh Agarwal VS State - Dishonour Of Cheque (2010)Bhim Bahadur Basnett vs State of Sikkim - 2023 0 Supreme(Sikk) 16.
Procedural safeguards like interpreter verification and video recording ensure fairness and credibility.
Integrate with NI Act's summary nature: Use affidavits proactively to expedite trials.
By following these guidelines, courts uphold justice without compromising accessibility. For hearing-impaired individuals or advocates in cheque dishonour cases, proactive preparation is key to admissible, effective testimony.
This post is for informational purposes only and reflects general principles from cited precedents. Legal outcomes vary by facts; seek tailored advice.
#Section138 #HearingImpairedWitness #NIActTrial
As quoted above in the case of Meters and Instruments Private Ltd (supra), evidence of the complainant could be given on affidavit subject to Court summoning such complainant and his witnesses for examination, it is not necessary for the Magistrate to record further preliminary evidence. ... In Expeditious Trial of Cases under Section 138 of the N. I. ... However, subsequently the complainant claimed that they rely upon the statemen....
(learned Trial Court), vide which the complaint filed by the appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was dismissed for non-prosecution. ... to consider material evidence on record; and that no two reasonablHe views are possible and only the view consistent with the guilt of the accused is possible from the evidence#HL_EN....
On the contrary, a larger issue of expeditious completion of the trial in the complaints under section 138 of the NI Act, 1881 was the subject matter of the Writ Petition filed by the Indian Bank Association (supra). In that context, the Supreme Court gave certain directions. ... Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complain....
is concerned, it reaches as soon as case is fixed to record the evidence of the complainant and and the affidavit of complainant as evidence was filed before the trial may, subject to all just exceptions be read in evidence in any enquiry, trial that as the case has already been fixed for recording the evidence of the observation made by the Hon'ble Court has wrongly dismissed the p
Therefore, exercising the power under Section 482 Cr.P.C, this Court cannot set aside a well reasoned order of the learned Judicial Magistrate, Fast Track Court (Magisterial Level) Karaikudi, based on the conduct of the parties before the Trial Court and the record before the Trial Court, which has more ... Even after examination of the complainant side witnesses and closing of complainant side witnesses, after gra....
the absence of evidence at trial.' ... In this regard: (i) X's Reason (Recall of Y) should allude to the proposed evidence to be adduced through Y's recall [Proposed Evidence (Y)]; and (ii) the Trial Court should then decide whether the Proposed Evidence (Y) is capable of assisting the Trial CourtCourt for it provides as follows in .
Despite the warning of dismissal of matter on particular dates, the appellant- complainant did not take precaution with due diligence to adduce evidence into the matter, nor the applicant-complainant secure his presence before the Court for progress into the matter. ... However, since 17-08-2015, there was no progress into the matter for evidence on behalf of appellant-complainant. ... The matter ....
The trial Court, after appreciating the evidence on record, observed as under:- ... "11. ... The Court is entitled to take notice of the conduct of the parties, the conduct of the complainant was not that of a prudent man. Why no instrument was executed when the money was allegedly paid to the accused is a relevant question which could be posed in the matter. ... equally well settled that the presumption of innocence of the accused ....
State of Bihar and Anr.5, the phrase “it appears from the evidence” has been interpreted to mean the evidence or the materials brought on record in the course of trial. In M/s. Omprakash Shivprakash v. K.I. ... After service of notice was affected on the original complainant, the application was taken up for final hearing. ... the inspection of the Court which are documentary evidence. ... The application was placed for admission hearing#HL....
The trial Court after taking into consideration all the materials on record and the conduct of the accused, dismissed the said application. A detailed order came to be passed on 3/1/2019. ... The trial Court highlighted the conduct of the accused before the trial Court in para Nos.18 to 21 which read as under; "18. ... The same was not brought to the notice of the Court while filing the revision petition. The #HL_....
She has also examined the Bank Manager, Corporation Bank [D.W.2] to show that payment of Rs.10,00,000/- made to the husband of the complainant by means of two cheques. The Trial Court on an analysis of the evidence available on record held that the complainant had failed to establish her case beyond reasonable doubt and acquitted the accused of the offence under Section 138 of the Negotiable Instruments Act. Aggrieved by the order of acquittal, the appellant filed the present appeals after obtaining leave.
In such a situation, no interference is warranted at the hands of this Court and the impugned judgment deserves to be upheld, for this reason as well. During the course of arguments, learned counsel for the applicant could not point out any jurisdictional error or patent illegality in the order passed by the learned trial court, so as to convince this Court to take a different view than the one taken by the learned trial court. In fact, learned trial court has discussed each and every relevant aspect of the matter, before arriving at a judicious conclusion that the complainant has ....
The evidence is not required to be given again in terms of Section 145 (1) of the Act and same has to be read during trial. The witnesses or the complainant can be recalled only when accused makes an application and only in circumstances when some reasonable ground is there to recall the witnesses. Moreover, the offence under Section 138 of the Act is technical in nature and defence to be taken by the accused is inbuilt as the cheques were given without consideration but the onus of proving the defence is upon the accused alone as provided under Section 106 of the Evidence Act. In ....
4) The trial Court on appreciation of oral and documentary evidence on record held that complainant failed to fulfil the conditions required under Section 138 of N.I Act and accordingly the trial Court acquitted the accused.
4. The trial Court on appreciation of oral and documentary evidence on record held that complainant failed to fulfil the conditions required under Section 138 of N.I Act and accordingly the trial Court acquitted the accused.
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