May 6, 2019:
Madhya Pradesh High Court has held that once the evidence by way of an affidavit has been filed then there is no necessity to recall the complainant to furnish his evidence unless the accused applies so and the matter should be put up for the evidence on behalf of the accused.
A bench of Justice Kasrekar has passed the order in the case titled as Ms. Promil Sareen vs Smt. Sangeeta Soni on 11.04.2019.
Accused had taken a friendly loan and returned the same through a cheque which was eventually dishonored. Complainant filed a case of cheque bounce. Notice was framed against the accused in the case and Magistrate listed the matter for complainant's evidence. The complainant prefered an application indicating that since the accused did not apply for cross examination, the matter should have been listed for defence evidence. Magistrate however dismissed his application. On the other hand the Magistrate allowed a belated application of the accused asking for cross examination.
When the matter reached the High Court, it observed "Section 145 (1) of the Act provides that, the evidence of the complainant may be given on affidavit at the time of presenting the case before the learned trial Court, shall be read as evidence in all the matters and proceedings. Section 145(2) of the Act provides that, 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. Sub-Section (2) of Section 145 of the Act provides that the respondent/accused initially made an application under Section 145(2) of the Act for examining the complainant".
The High Court also observed as "but while passing the impugned order the trial Court has fixed the matter for cross-examination of the petitioner/complainant, which is not permissible under the law".
Referring to the decision in Indian Bank Association and others vs. Union of India and others reported in (2014) 5 SCC 590, the High Court observed "The Apex Court in the case of Indian Bank Association and others (supra) has held that once the proviso (a) (b) and (c) of Section 138 of the Act are fulfilled then the offence stands technically committed and it is for the accused to show that no offence could have been committed by him for specific reasons and defence. Therefore, once the evidence by way of an affidavit under Section 145(2) of the Act has been filed then there is no necessity to recall the complainant to furnish his evidence".
Ultimately, the High Court directed the Magistrate to list the case for defence evidence by saying "In the light of the above discussion as well as the judgment cited above, the present Miscellaneous Criminal Case filed under Section 482 of the Cr.P.C. is allowed and the order impugned dated 15.12.2016 is hereby quashed. The trial Court is directed to list the matter for evidence of the respondent/accused". (emphasis supplied).
Read the order here:
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