The Single Bench of Justice B Sudheendra Kumar was hearing an appeal filed against the order of the Chief Judicial Magistrate whereby it dismissed the complaints on the grounds that the complainant did not mark his appearance before the court. The Appellant argued that as per the provision of Section 145 of the Negotiable Instruments Act, the complainant can file its evidence affidavit and as such the presence of the complainant must not be insisted upon by the Court before taking cognizance of the matter. The Appellant further relied on the judgment of the Apex Court in Radhey Shyam Garg v. Naresh Kumar Gupta [(2009) 13 SCC 201] examined the scope of Section 145 of the N.I. Act and held that:-

“19. If an affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-examined and upon completion of his evidence, he may be re-examined. Thus, the words “examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of sub-section (2) of Section 145 of the Act”, in our opinion, would mean for the purpose of cross-examination. The provision seeks to attend a salutary purpose”.

The Appellant further referred to the judgment of the Apex Court in Indian Bank Association and others v. Union of India and others [(2014) 5 SCC 590] referred to the provisions of Section 145 of the N.I. Act and held in paragraph 16 that:-

“16. Considerable time is usually spent on recording the statement of the complainant. The question is whether the court can dispense with the appearance of the complainant instead, to take steps to accept the affidavit of the complainant and treat the same as examination-in-chief. Section 145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The court has to accept the same even if it is given by way of an affidavit. The second part of Section 145(1) provides that the complainant’s statement on affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings.”

The High Court set aisde the orders of the lower court which dismissed the complaints and directed the lower court to continue with the proceedings as per law on the following observation:

“12……………………..It is abundantly clear from the object of enactment of Section 145 of the N.I. Act and the ratio laid down by the Apex Court that the personal appearance of the complainant is not necessary for taking cognizance of the offence. Therefore, the courts dealing with the cases under Section 138 of the N.I. Act shall not insist for the personal appearance of the complainant at the pre-cognizance stage, if the complaint is accompanied by the affidavit of the complainant and the affidavit and the documents, if any, are found to be in order.”

 

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