: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. OF 2006 CRIMINAL APPEAL NO. OF 2006 CRIMINAL APPEAL NO. OF 2006 ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- Office Notes, Office Court’s or Judge’s orders Office Notes, Office Court’s or Judge’s orders Office Notes, Office Court’s or Judge’s orders Memoranda of Coram Memoranda of Coram Memoranda of Coram appearances, Court’s orders appearances, Court’s orders appearances, Court’s orders or directions and or directions and or directions and Registrar’s orders Registrar’s orders Registrar’s orders ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ Mr.A.M.Saraogi for Applicant Mr.A.M.Saraogi for Applicant Mr.A.M.Saraogi for Applicant Mr.Subhash Dhandge for Res.no.1 & 2 Mr.Subhash Dhandge for Res.no.1 & 2 Mr.Subhash Dhandge for Res.no.1 & 2 Ms.M.H.Mhatre APP for State Ms.M.H.Mhatre APP for State Ms.M.H.Mhatre APP for State Coram : R.S.Mohite, J Coram : R.S.Mohite, J Coram : R.S.Mohite, J Date : 28.11.2007 Date : 28.11.2007 Date : 28.11.2007 PC PC PC 1. Heard both sides. 1. Heard both sides. 1. Heard both sides. 2. Leave has been granted by me by a 2. Leave has been granted by me by a 2. Leave has been granted by me by a separate order passed in Criminal separate order passed in Criminal separate order passed in Criminal Application No.2866 of 2006. By Application No.2866 of 2006. By Application No.2866 of 2006. By consent, appeal is taken up for final consent, appeal is taken up for final consent, appeal is taken up for final disposal as the point involved is very disposal as the point involved is very disposal as the point involved is very short. From the impugned judgment and short. From the impugned judgment and short. From the impugned judgment and order, it appears that in a case under order, it appears that in a case under order, it appears that in a case under section 138 of the Negotiable section 138 of the Negotiable section 138 of the Negotiable Instruments Act, an affidavit in lieu Instruments Act, an affidavit in lieu Instruments Act, an affidavit in lieu of examination-in-chief came to be of examination-in-chief came to be of examination-in-chief came to be filed by the complainant and the same filed by the complainant and the same filed by the complainant and the same was accepted by the Magistrate on was accepted by the Magistrate on was accepted by the Magistrate on record. Later on, the complaint has record. Later on, the complaint has record. Later on, the complaint has : 2 : been dismissed on the ground that the been dismissed on the ground that the been dismissed on the ground that the affidavit which was accepted by the affidavit which was accepted by the affidavit which was accepted by the Court was not properly sworn. Court was not properly sworn. Court was not properly sworn. Accused have been acquitted on the Accused have been acquitted on the Accused have been acquitted on the ground that the evidence of the ground that the evidence of the ground that the evidence of the complainant could not be taken into complainant could not be taken into complainant could not be taken into account because the affidavit in lieu account because the affidavit in lieu account because the affidavit in lieu of the examination-in-chief was not of the examination-in-chief was not of the examination-in-chief was not affirmed. In my view, this has affirmed. In my view, this has affirmed. In my view, this has resulted in miscarriage of justice. resulted in miscarriage of justice. resulted in miscarriage of justice. The proper course that the Magistrate The proper course that the Magistrate The proper course that the Magistrate ought to have followed was to allow the ought to have followed was to allow the ought to have followed was to allow the complainant to affirm the affidavit in complainant to affirm the affidavit in complainant to affirm the affidavit in lieu of examination-in-chief and to lieu of examination-in-chief and to lieu of examination-in-chief and to allow the accused to cross-examine the allow the accused to cross-examine the allow the accused to cross-examine the complainant afresh if he so desired. complainant afresh if he so desired. complainant afresh if he so desired. In this view of the matter, appeal is In this view of the matter, appeal is In this view of the matter, appeal is allowed. The impugned judgment and allowed. The impugned judgment and allowed. The impugned judgment and order dated 22nd June, 2006 passed by order dated 22nd June, 2006 passed by order dated 22nd June, 2006 passed by the Metropolitan Magistrate, 6th Court, the Metropolitan Magistrate, 6th Court, the Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai in C.C.No.2268/05 is Mazgaon, Mumbai in C.C.No.2268/05 is Mazgaon, Mumbai in C.C.No.2268/05 is quashed and set aside with a direction quashed and set aside with a direction quashed and set aside with a direction to the Magistrate to get the affidavit to the Magistrate to get the affidavit to the Magistrate to get the affidavit in lieu of examination-in-chief of the in lieu of examination-in-chief of the in lieu of examination-in-chief of the complainant affirmed and thereafter complainant affirmed and thereafter complainant affirmed and thereafter permit the accused to cross-examine the permit the accused to cross-examine the permit the accused to cross-examine the complainant if they so desired and to complainant if they so desired and to complainant if they so desired and to re-decide the matters on record. It is re-decide the matters on record. It is re-decide the matters on record. It is made clear that no further evidence made clear that no further evidence made clear that no further evidence : 3 : will be allowed to be adduced and other will be allowed to be adduced and other will be allowed to be adduced and other evidence which is on record will be evidence which is on record will be evidence which is on record will be analysed on merits when the judgment is analysed on merits when the judgment is analysed on merits when the judgment is delivered on merits. delivered on merits. delivered on merits. Appeal is disposed of accordingly. Appeal is disposed of accordingly. Appeal is disposed of accordingly. (R.S.Mohite, J) (R.S.Mohite, J) (R.S.Mohite, J)