Orissa High Court
Sri Harihar Mishra And Another vs M/S. Acrux Realcon Pvt. Ltd on 29 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2244 of 2022
Sri Harihar Mishra and Another .... Petitioners
Mr. Bansidhar Baug, Advocate
-Versus-
M/s. Acrux Realcon Pvt. Ltd. .... Opposite Party
Mr. Swapna Kumar Ojha, Advocate for sole opposite party
CRLMC No.2245 of 2022
Sri Harihar Mishra and Another .... Petitioners
Mr. Bansidhar Baug, Advocate
-Versus-
M/s. Acrux Realcon Pvt. Ltd. .... Opposite Party
Mr. Swapna Kumar Ojha, Advocate for sole opposite party
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:29.03.2023
1.
Invoking this Court's inherent jurisdiction, the petitioner has
challenged the correctness, legality and judicial propriety of the
impugned orders dated 6th August, 2022 under Annexure-5
passed in 1CC Case Nos.2011 and 1560 of 2019 by the learned
J.M.F.C., Bhubaneswar on the grounds inter alia that the same are
not tenable in law and hence, therefore, liable to be interfered
with and quashed in the interest of justice.
2. The opposite party filed the complaints before the learned
court below after the cheques said to have been issued by the
Sri Harihar Mishra and Another Vrs. M/s. Acrux Realcon Pvt. Ltd.
petitioners stood dishonored due to insufficiency of fund. It is
made to appear that the complaints supported by affidavits were
filed by the opposite party, considering which, the learned
S.D.J.M., Bhubaneswar took cognizance of the offence under
Section 138 of the N.I. Act and thereafter, summoned the
petitioner. At the commencement of trial, evidence in the shape
of affidavits as at Annexure-3 were filed which was objected to by
the petitioner on the ground that it cannot be accepted as the
opposite party has already filed affidavits basing upon which the
court proceeded and has taken cognizance of the offence under
Section 138 of the N.I. Act. In fact, affidavits were filed with the
complaints and thereafter, the learned court below recorded the
initial statements of the representative of the opposite party and
after receiving such evidence took cognizance of the offence
under Section 138 of the N.I. Act. While the trial to begin, the
opposite party filed the affidavits as evidence which was opposed
by the petitioner on the ground that the same is not permissible in
law.
3. Heard Mr. Baug, learned counsel for the petitioner and Mr.
Ojha, learned counsel for the opposite party.
4. Mr. Baug, learned counsel for the petitioner submits that such
filling of affidavits for the second time is not acceptable and
learned court below could not have received it, when initially the
complaints were filed with affidavits. In fact, the learned court
below rejected the applications of the petitioner on the ground
that the initial affidavits were received for and at the time of
taking cognizance of the offence and thereafter, the affidavits by
way of evidence were filed which is in confirmity with Section
145 of the N.I. Act. Mr. Baug, learned counsel for the petitioners
cited the following decisions, such as, Indian Bank Association and
Others Vrs. Union of India and Others (2014) 5 SCC 590;
Sri Harihar Mishra and Another Vrs. M/s. Acrux Realcon Pvt. Ltd.
Mandvi Cooperative Bank Limited Vrs. Nimesh b. Thakore (2010)
3 SCC 83; Meters and Instruments Private Limited and Another
Vrs. Kanchan Mehta (2018) 1 SCC 560; Vikas Sharma Vrs. Vishant
Bali 2020 SCC Online HP 2876; K.S. Joseph Vrs. Philips Carbon
Black Limited and Another (2016) 11 SCC 105 and In Ref:
Expeditious Trial of Cases Under section 138 of the N.I. Act, 1881
in Suo Motu Writ Petition (Crl.) No.2 of 2020 reported in AIR
2021 SC 1957 to contend that the learned court below cannot
and could not have received the second lot of affidavits filed by
the opposite party as affidavits along with the complaints had
already been filed at the beginning. Mr. Ojha, learned counsel for
the opposite party, on the other hand, justified the impugned
orders contending that the affidavits have been filed as evidence
and the court below accepted it which is nothing to do with the
initial affidavits which were submitted with the complaints while
seeking an action against the petitioner.
5. In Indian Bank Association (supra), the Supreme Court held
that Section 145 of the N.I. Act provides complete freedom to the
complainant either to give his evidence by way of affidavit or by
oral means and the court has to accept the same even if it is in the
form of an affidavit. It is also observed therein that the second
part of Section 145(1) of the N.I. Act 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, referring to which, Mr. Baug, learned counsel for the
petitioner submits that since affidavits are already on record file
with the complaints, the second string of affidavits could not have
been accepted. In the said decision, it has been further observed
that the affidavit and documents filed along with complaint for
taking cognizance of the offence are good enough to be read as
evidence at both the pre-summoning and post-summoning stages.
Sri Harihar Mishra and Another Vrs. M/s. Acrux Realcon Pvt. Ltd.
Laying much emphasis on the above, Mr. Baug submits that as the
complaints have been filed along with affidavits, only the said
affidavits are to be considered by the learned court below as the
evidence during trial and therefore, second affidavits ought not to
have been entertained and accepted. If the decision (supra) is read
and understood, it does mean that affidavit which is filed along
with the complaint for taking cognizance of the offence may be
read as evidence later on during enquiry and trial. It is no
authority to say that an affidavit filed at the initial stage along
with complaint debars the complainant from filing affidavit
evidence. Section 145 of the N.I. Act deals with the affidavit
evidence and its stipulates that the evidence of the complainant
may be given by way of affidavit and may, subject exceptions, be
read in evidence in any enquiry, trial or other proceedings under
the Code of Criminal Procedure, 1973. By virtue of Section 145 of
the N.I. Act, affidavit evidence is to be received by the court
notwithstanding anything contained the Code of Criminal
Procedure and the same shall be accepted at any stage and may
also be used and read in evidence during trial or other
proceedings. In the event, any such affidavit is received either
from the prosecution or the defence as per Sub-section (2) of
Section 145 of the N.I. Act, the court may and mandatorily on the
application of respective parties summon the person who filed it
for the purpose of cross-examination.
6. In the instant case, the complaints were filed along with
affidavits which is not in dispute but Mr. Baug, learned counsel
for the petitioner submits that since there is already affidavits
received along with the complaints by the learned court below,
second affidavits as evidence should not have been accepted. The
Court is not in agreement with such a contention of Mr. Baug.
The initial affidavits if at all received by the learned court below
Sri Harihar Mishra and Another Vrs. M/s. Acrux Realcon Pvt. Ltd.
along with the complaints, it was and may be said to be for a
limited purpose to set the criminal action into motion and
thereafter, at the stage of trial any such affidavit so furnished in
the shape of evidence is to be entertained as it does not debar the
court from accepting it. According to the Court, it is one thing to
say that an affidavit filed and received by the court initially may
be treated as evidence and is good enough for the purpose of trial
and altogether different to claim that affidavit evidence in terms
of Section 145 of the N.I. Act, if it is filed by the complainant
despite an affidavit submitted along with complaint, the same
cannot be accepted since there is already an affidavit on record.
The authority and other decisions placed reliance on Mr. Baug,
learned counsel for the petitioner do not subscribe any such view
that the complainant is absolutely debarred from filing any such
affidavit evidence for the reason that the complaint was filed
along with an affidavit which may be used and utilized during
enquiry and trial. Without elaborating further, the Court is of the
irresistible conclusion that the learned court below did not
commit any error or illegality in rejecting the plea of the
petitioner vide the impugned orders under Annexure-5.
7. Accordingly, it is ordered.
8. In the result, the CRLMCs stand dismissed for the reasons
discussed herein above.
(R.K. Pattanaik)
Judge
Uksahoo
