-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P.NO.2404 OF 2005 TO CRI.W.P.NO.2412 OF 2005 Julon Foods Pvt.Ltd. and Ors. ..Petitioners Vs. State of Maharashtra & Anr. ..Respondents ... Mr.S.V.Marwadi i/b M/s.Desai and Chinoy for Petitioners Mr.Sanjog Parab for Respondent no.2 Mr.U.V.Nikam A.P.P. for the State in 2404 and 2412 of 2005 Mr.B.H.Mehta A.P.P. for State in 2405 and 2406 of 2005 Mr.V.B.Konde-Deshmukh A.P.P. for State in 2407 of 2005 Mr.S.R.Shinde A.P.P. for State in 2408 of 2005 Ms.S.V.Gajare A.P.P. for State in 2409 of 2005 Mr.R.S.Khadapkar A.P.P. for State in 2410 of 2005 Mr.Rajesh More A.P.P. for State in 2411 of 2005 ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : OCTOBER 11, 2005 DATE : OCTOBER 11, 2005 DATE : OCTOBER 11, 2005 P.C. P.C. P.C. 1. Heard Mr. Marwadi, the learned advocate for -2- the petitioners i.e. original accused, Mr.Sanjog Parab, the learned advocate for respondent No.2 i.e. original complainant and the learned A.P.P. for the State. 2. The petitioners are facing prosecution in Criminal Case No.458/S/2004, 395/S/2004, 838/S/2004, 836/S/2004, 2357/S/2004, 2368/S/2004, 837/S/2004, 396/S/2004 and 397/S/2004 pending before the learned Special Metropolitan Magistrate, 13th Court Dadar, Mumbai. The said case is under Section 138 of Negotiable Instruments Act. In the said case the complainant has filed an affidavit of evidence by way of examination in chief as per amended provisions under Section 145(2) of Negotiable Instruments Act. The said affidavit was taken on record. 3. The petitioners had preferred an application before the learned Magistrate for calling the complainant for recording his examination in chief. By order dated 15.9.2005, the learned Magistrate rejected the said application. Being aggrieved by the said order, this application has been -3- preferred. 4. Mr. Marwadi, has submitted that various facts are introduced in the examination in chief in the form of affidavit which do not find place in the complaint, this would cause prejudice to the petitioners, hence, the complainant ought to be directed to lead oral evidence in the form of examination in chief. However, it is pertinent to note that the evidence in the form of affidavit is subjected to cross examination under Section 145 of Negotiable Instruments Act. In such case all the omissions or contradictions can be brought on record during the course of cross examination. Hence, there can be no question of prejudice to the accused. 5. In view of the amended provisions of Section 145 of Negotiable Instruments Act, the complainant is entitled to lead evidence by way of an affidavit. The Division Bench of this Court in the case of KSL & Industries Ltd. Vs. Mannalal KSL & Industries Ltd. Vs. Mannalal KSL & Industries Ltd. Vs. Mannalal Khandelwal & Anr reported in 2005 Cri.L.J. 1201, Khandelwal & Anr reported in 2005 Cri.L.J. 1201, Khandelwal & Anr reported in 2005 Cri.L.J. 1201, has held that the evidence of the complainant in -4- respect of his examination in chief can be taken on affidavit. If evidence of the complainant is taken on affidavit, it would not be necessary to again record examination in chief of the complainant whose affidavit of examination in chief is already filed. The Division Bench was specifically considering the issue i.e. whether, inspite of mandate of Section 145(1) of the Act, the Court is obliged to examine the complainant even in respect of matters which have been stated in affidavit. The said issue has been decided in para 38 and 39 which read as under:- "38. Sub-section (1) of Section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any -5- enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 39. We are clearly of the opinion that according to the language of Section 145 of the Act, the evidence (examination-in-chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he/she may request the Court to call the complainant for cross-examination." 6. This issue also came to be considered by a Single Judge of this Court in the decision dated 25.7.2005 dated 25.7.2005 dated 25.7.2005 in Criminal Writ Petition No. 1274 of 2005 (M/s. in Criminal Writ Petition No. 1274 of 2005 (M/s. in Criminal Writ Petition No. 1274 of 2005 (M/s. Indo International Ltd. & Anr Vs. State of Indo International Ltd. & Anr Vs. State of Indo International Ltd. & Anr Vs. State of Maharashtra & Anr) Maharashtra & Anr) Maharashtra & Anr). After considering the decision of the Division Bench, the Single Judge of this Court has observed thus:- -6- " Thus, the law laid down by the Division Bench in the decision of KSL Industries can be summarised as under: (a) The Court dealing with a complaint under Section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any, on affidavit. (b) If the evidence of witness is taken on affidavit, after an application is made by the other party under sub-section (2) of Section 145, it is not necessary to again record examination in chief of the witness whose affidavit of examination in chief is already filed. (c) If an affidavit is filed under sub-section (1) of Section 145 and -7- an Application is made under sub-section (2) of section 145 by the other party, the witnesses must be made available for cross-examination by the rival party. In my view, the decision of the Division Bench clearly and unambiguously lays down the aforesaid propositions of law and the Division Bench has clearly answered the issue which was referred to it by the learned Single Judge of this Court". 7. As far as the apprehension of the petitioners is concerned that various facts which have been introduced in the affidavit which do not find place in the complaint, would go on record, I find the apprehension to be baseless as the evidence in the form of affidavit is subjected to cross examination under Section 145 of Negotiable Instruments Act. In the course of cross examination accused can bring on record various omissions and contradictions. -8- 8. In the case of Bipin Shantilal Panchal Vs. State Bipin Shantilal Panchal Vs. State Bipin Shantilal Panchal Vs. State of Gujrat, AIR 2001 SC 1158, of Gujrat, AIR 2001 SC 1158, of Gujrat, AIR 2001 SC 1158, the Supreme Court has observed that whenever an objection is raised during evidence taking stage recording admissibility of any material or item or oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case, subject to such objection being decided at the last stage in the final judgment. Thus, if the course in the case of Bipin Shantilal Panchal (supra), is followed by the trial Court there should not any prejudice to the accused persons. 9. It is further submitted that in the present case, cheques were issued prior to the amendment pertaining to Section 145 of Negotiable Instruments Act. The amendment came into effect much after the cause of action arose and hence, this amendment cannot be made applicable to the present case with retrospective effect. It is pertinent to note that it was only after amendment came into effect that the affidavit was taken on record by way of examination in chief. This amendment is only a procedural amendment and it does not in any way enhance punishment or impose any -9- penalty on the accused nor does it make something which was not an offence earlier, punishable on account of the amendment. As stated earlier, it is only after the amendment that the affidavit has been taken on record. In this view of the matter, I find no merit in this submission. On perusal of the order of the learned Magistrate dated 15.9.2005, I find that the order is just, legal and proper and no interference is called for. Petitions are rejected. 10. Any apprehension that may arise in the mind of the petitioners would be taken care of by the observations of the Supreme Court in the case of Bipin Panchal (supra) Bipin Panchal (supra) Bipin Panchal (supra) and the observations of the Division Bench of this Court in the case of KSL & KSL & KSL & Industries Ltd. (supra) Industries Ltd. (supra) Industries Ltd. (supra) wherein it is observed in para 38 in respect of filing of affidavit of the complainant that "it may be subject to all just exceptions". It is clarified that if any objection is raised during the evidence taking stage regarding admissibility of any material or item or oral evidence, the trial Court to make a note of such objection and mark the objected document or portion tentatively as an Exhibit in the case, subject to -10- such objections to be decided at the last stage during the final judgment. 11. Writ Petitions are disposed of. [SMT.V.K.TAHILRAMANI,J.]