IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 CRL.A.No. 1340 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.265/2003 Dated 01/08/2003 CC.617/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE,COURT, ERNAKULAM .................... APPELLANT/COMPLAINANT: -------------------------------- SUBRAMANIAN M.B., MANAGING PARTNER, M/S. ELECTRONICS CENTRE, TRIPPUNITHURA. BY ADV. SRI.P.N.SUKUMARAN RESPONDENTS/ACCUSED & STATE: ----------------------------------------- 1. KRISHNAKUMAR.P., S/O. PARAMESWARAN PILLAI, MADHAVAM, PANGODE, VENGAMURI P.O., TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl. Appeal No.1340 of 2003 ========================== Dated this the 8th day of April, 2008 JUDGMENT Can a criminal court compel the complainant in a prosecution under Section 138 of the Negotiable Instruments Act to file proof affidavit in lieu of examination in chief? 2. The learned Magistrate before whom the case came up for consideration insisted that the complainant should file a proof affidavit. Though the complainant who was present in court was prepared to step in to the witness box and give evidence, the learned Magistrate took the view that the complainant was bound to file a proof affidavit under Section 145 of the Act. According to the learned Magistrate, the obstinacy shown by the complainant in refusing to file the affidavit was not justified. Therefore the learned Magistrate proceeded to acquit the accused under Section 255(1) of the Code of Criminal Procedure. 3. Section 145 of the Act reads thus:- “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 Crl.A.No.1340/2003 2 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. (emphasis supplied) 4. A perusal of the provisions contained in the above Section will unambiguously show that it is not mandatory or incumbent on the complainant to file a proof affidavit in lieu of chief examination. But obviously, an option is given to the complainant to file a proof affidavit, in which event, it shall be read in evidence subject to “all just exceptions”. Considering the pressure of work in the courts, especially in the criminal courts in the State, it will of course be expedient and desirable if the complainant in a prosecution under the Act files a proof affidavit, so that, precious judicial time can be saved. If the trial court issues such a direction with the above object in view, necessarily the litigants and members of the Bar have to co-operate. Otherwise justice dispensation system will suffer, and speedy justice will always remain a mirage or a distant dream. At the same time, failure or refusal of a complainant to tile proof affidavit shall never result in denial of justice. Crl.A.No.1340/2003 3 5. As has been noticed already, the complainant was personally present in court and he was prepared to mount the witness box and give evidence. It appears that for some obscure reasons the complainant refused to file his proof affidavit. But still, the learned Magistrate was not at all justified in compelling him to do so. Still worse, the order of acquittal was not at all justified under any circumstances. Therefore the order of acquittal is set aside. The court below is directed to dispose of the case in accordance with law. A.K.BASHEER,JUDGE dvs