APPLICANT: HIGH COURT OFCHHATTISGARH. BILASPUR Crimjnal Misc.Petition No.359 of 2007 Nirmala Devi Versus RESPONDENTS: Sanjay and another th Post for pronouncemenU)f order on 18"' September. 2009 Sd/. r-p- SAa@na ^udge •1..1 Ui u % HIGHCOURTOFCHHATnSGARH.BILASPUR ^s^t 'HI, APPLlQANT/: (Appell^nt)/ (Complainant) Criminal Misc. Petition No.359of2007 Nirmala Devi, aged 62 yrs., wA> Mirchumal, R/o Mangda Para, Qpp.Amar PlasticFaGtory, M.G. Road, Raipur, C.G. RESPONDENTS/: (Accus^d) (State) Versus 1. Sanjay;' aged 40 yrs., s/o Chandumal Khatuja, R/o F/104, Near Royal Horae Bottle qHouse, SManker Nagar, P.S. Civil Lines, Raipur.C.G. 2. State of Chhattisgarh, through S.H.O., P.S. Gole Bazar.Raipur, C.G. {ApplicationunderSecfion 378 (4)^of the Code of Criminal Procedure, 1573,^ forgrahtofspecijal leave td appealfrom the orderofacquittal} ^ AL... ' . .. . .....----..-_______________^__^ L Present: " ' Mr. Bhishma Kinger, courtsel for the applicant. Mr. Rajendra Trjpathi, Panel Lawyer for the State/non-applicant No.2. 1 Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORDER (Passed on 18th September, 2009) 1. This|applicationfbrgrantofleave to appeal underSection 378 (4) ofthe Cr.P.C. is directed against the judgment of acquittal dated 26-6-2007 pas^ed by the Judicial Magistrate First Class, Raipur in Criminal Gasej ; No.©9/2006, whereby learned Judicial Magistrate First Class has acquitted non-ap^licant No.1 of the charge under Section 138 of the Neg^tiable lnstrumentsAct,1881 (forshort'theAct'). 2. Leaye to appeal is prayed on the ground that the Court below has not ! Gongidered the mandatory provision of Section 145 of the Act which prpyjdes special provision for evidence on affidavif, and has committecl, •;,illegality. • ;; " .:' ^ ; ; l':;' : ! :.li;'1':':;; 3. 1 hayeheard learnedcounsel for the applicant, learned Panel .Ahg i^ltate/non-applicant No.2 and pemsed the judgment im , also'the record of the Court helow. .,£!fu IMt'i :N 4. Learned counsel for the applicaht vehemently argued that Section 145 of the ^ipt provides special procedure for taking evidenceon affidavit. The applicant/complainant has flled an affidavit as evidence, but same has not been considered by the trial Court and the trial Court has overlooked the mandatory provisions of Section 146 of the Act which provjde& speclial provision for presumption relating to Bank's slip. Learned counsel further argued that the applicant has tendered affidavit after explaining the particulars of the offence by the Court, in terms ofSectiQn 145tof the Act, but same has not been consjdered even on the application filed on behalfoftheappliGantfortakingsuch evidence under Seetjon 145 of the Act.'and thfereby committed illegality. 5. On the other hand, learned State counsel appearing on behalf of non-; applicant No.2 supported the judgment impugned and submitted that the Court below has directed the applicant for adducing his evidence, but the applicanUGomplaffianthasnotobeyedtheorder/direction oftheCourt.In abs^nee of evidehce no option except to acquit non-applicant No.1 was left and the Court below has rightly acquitted non-applicant No.1 in absenee of any prima facie evidence. 6. Complaintunder Section 138 ofthe Act was filed by the applieantherein through his attorney supported by an affidavit and on the basis 6{ affklavit the Court below has taken eognizance of the offence against non-applicant N5.T herein and issued process. Qn 17-4-2006, 'particulars of the offence have been explained to non-applicanf Np.1 and the Gomplainant/applicant was directed to adduce evidence in;support of hiis complaint on 5-9-2006. On 5-9-2006, the complainant tendered ^.^affidavitas evidenceand thesame has been opposed by non-applicantii Np.1|. Considering the affidavit and arguments, the Court •n •i rejeeted -the examination-in-chief of'the tomplainant's attorney; on ••;tl Ibeloft has affidavit and directed to adduce the evidence. The order dated 8-1-2007 rejeGting the examination-in-chief of the complainant's attorney on affidavit was challenged in revision and the revisional Court has approved fhe order ofthe trial Court vide its order dated 14-5-2007 passed in Criminal RevisionNo.60/2007. After passing of the order dated 14-5-2007 bythe revisional Court, the attorney of the complainant has iagain filed an application on 25-6-2007 for taking affidavit as evidence which was rejected by the trial Court and in absence of evidence, the trial Court has dismissed the complaint and acquitted non- 1 . .' . . ' ' • ' • • • applicant No.1 ofthe charge;under Section 138 oftheAct. 7, The Negotiable Instruments Act, 1881 provides for trial of the offence under Section 138 ofthe Act. Section 143 of the Act provides that the offeriees punishable under the Act are triable by the Judicial Magistrate First Class in accordanGe with Sections 262 to 265 (both inclusive) ofthe Codeof Criminal ProGedure, 1973 (for short 'the Code') (summary i .•'••' .' ' '. • '..'•. . • • . • ' • .' • .. '' • • proctedure). SeGtion 145 of the Act provides for taking evidenee on affidayit. Section 146 oftheAct provides presumption relating to Bank's slip. Sections 145 & 1 46 of the Act read as follows: - "145. Evidence on affidavit.—(1) Notwithstanding anything contained in the Codeof 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 itthinks fit, and shall, on fhe application of the prosecution or the accused, summbn and examine any persongiving evidenceon affidayit|as to the facts contained therein. 146. Bank's slip prima facie evidence of certain facts.—TheCourtshall.in respect of every proceedi|ng ^ under this Chapter, on productions of bank'sslip memo having thereon the official mark denoting thatthe cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and untilsuch fact is disproved." 8. Sectjon 145 (1) of the Act provides that the evidence of the complainant mayibe 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 SaidiCode. Sub-section (2) of Section 145 of theAct further provides thatlhe Court may, if it thinks fit, and shall, on the application of the prospcution or fhe accused,~summon and examine any person giving evidenceon affidavit as to the facts eontained herein. On plain readihg ofSeGtion 145 of the Act itjs clear that the provisionsare not mandatoFy and jthe evidence of the complainant may be given by him on affidavit subject to alljust exceptions and in appropriate cases the Court may on the application of the prosecution or the accused, summon and examine .anypersori giving evidence onaffidavit as to the facts contained therein. IfaRplication of sueh nature is filed by the prosecution or the aecused, summoning andexamining such person is mandatory for the Court. 9, In the present case, after explaining particulars of the offehce, the Court was with follotos: - required to proceed inaccordance with Sections 262 to 265 read Sections 251 to 259 of the Code. Section 262 of the Code reads as "262. Procedure for summary trials.—(1)In trial under this Chapter, the procedure specified in this Code for the trial'of summons-case shall be followed except as herejnaftermentioned. - (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter." ^.. [ijil]! "^- lO.Section 262 of the Code provides that in caseof summary proceeding the procedure for the trial of summons-case shall be followecl. Partteulars of the offence explained to non-appticantNo.1 have not been admitted by non-applicant No.1. In accordance with Sections252 & 253 ofthe Code, in case thenon-applieantor the accused does not admit the particylarsof the offence explained him or if the Court does not convict the accused in accordance with Sections 252 & 253 of the Code, the Court is required to take all such evidence as may be produced in sypliort of the prosecution in accordance with Section 254 of the CQde. 11.1rT thjepresent case.-aftec explaining the particulars of theoffence, the applieanVcomplainant has filed an affidavit in terms of Section 145 ofthe Actandthe same was objected bynon-applicantNo.1. After hearing the parties, the Court below has directed the complainant to adduce his evidence and has denied to accept theaffidavit as examination-in-chiefc on the ground that the provisions of Section 145 of the Act are not maridatory and in appropriate cases, the Court may directthe parties for ^ giyin^ evidence. The provisions ofSection 145 ofthe Actattractin case of chhsent 6f the parties and satisfaction of the Court. The order rejecting the examination-in-chiefwasmaintained bythe revisional Court andiafter the orderof the revisional Court, the trial Court has again dire6ted the Gomplainantfor his evidence, but the complainant has again "filedjan application stating that his affidavit be accepted as evidence and he does not want to adduce any further evidence. • -•^•;,'t ' .... !1 ' ' ^ ' - : : ^ ! •/ • ::.. l.:." !12,The provisions of Section 145 of the Act are diseretionary, hot mandatory and in'appropriate cases the Court is required to summonand examin&i »anyperson giving evidence on affidavit as to the facts coijitained thereirfg and ]in case of application of any party, the Court is under dbligation 1®^ syttimon such person for examinationi In the present case, non-^ IWSgJiil /i-Uffi:^^ •::^P:f^r ''^^NIlll •—"^^iSKKEB^; ^:'i^ls:;iii ll lli applicant No.1 was not agreed to accept the evidenee on affidavit. Taking into consideration the objection of non-applicant Nq.1 and on due congideration of the facts and circumstances of the case, the Court below has directed the complainant to give evidence as to the facts contained in the affidavit, butthe complainant has not examined herself oranywitness.In absence of any evidence, the Court below has ; disrriissed the complaint and acquitted non-applicant No.1. ^ 13.Thei complainant has filed original cheque, one printed format of Merriorandum containing 22 columnsand an initial on itsfoot, butno official mark denoting-that flie cheque has been dishonoured appears in^ {he said printedformat. Itis difficult to presume that this printed format hasbeen issuecl by any Bank authority without anyfurthersupport.In absence of any official mark ofthe Bank, no presumption in terms of;%: Section 146 of the Act would be possible, of the fact that the cheque hasw; beendishonoured. 14.It islclear fromthe combined reading of Sections 143 & 145 of the Act and |Sections251to 259 &262 of the Code that the provisions of Section 145|ofthe Act are not mandatory, but are only discretionary and in apprbpriate cases the Court may summon and examine any person^ ^giying evidence on affidavitas to the faets contained therein, and in case^i thepartiescomply.suchsummoning and taking evidence is mandatory. I.S.Inthe present case, the Court below has summoned the complainant's witness, but be has refusedto give any evidence contained in fhe^ affidavit. After refusal by the complainant's attorney, no option except to? acqujt non-applicant No.1 of the charge under Section 138 of the Act?r , w^s'leS with the Court below. In absence of any evidence, the Court|| ^ belowtias rightlyacquittednon-applicantNo.1. The Court below hasnoUIJ 118 18! ^:;.^;;t]!,.^g!.B] Soma 7 comTnitted any illegality or jnfirmity in passing the judgment impugned. In absence of any evidence much tess the debatable evidence, 1 do not find any ground for grant of leave to appeal against the judgment of acquittal. .1 .... 16;Consequently, the applicationfor grant of leave to appeal against the judgment of acquittal is dismissed. Sd/- T.P. Sha^ma Judge ^.-1 i •l ^